CAAF will hear oral argument in the Air Force case of United States v. Danylo, No. 13-0570/AF (CAAFlog case page), on Monday, December 16, 2013, at 9:30 a.m. The case continues the contentious litigation of Appellant’s speedy trial claims that were repeatedly considered at the trial level and by the beleaguered Air Force Court of Criminal Appeals.

Appellant was convicted, pursuant to conditional pleas of guilty entered in accordance with a pretrial agreement, of use and distribution of marijuana and cocaine, introduction of marijuana, and assault consummated by a battery, in violation of Articles 112a and 128. He was sentenced to a bad-conduct discharge and confinement for 10 months. The pretrial agreement had no effect on the adjudged sentence, as it merely limited the confinement to 350 days.

But that 350 days is precisely the issue, as it’s the length of time Appellant spent in pretrial confinement, and is central to CAAF’s consideration of this case. The odyssey began on April 9, 2010, when Appellant (an E-1) was transferred to a “transition flight” (an administrative unit for Air Force personnel pending separation). A few days later Appellant assaulted another Airman, landing him in pretrial confinement at the Wichita County Jail Annex in Wichita Falls, Texas. But the other Airman was hardly an innocent victim. Instead, he and Appellant (and others) were involved in drug activity that was already under investigation by the Air Force Office of Special Investigations (AFOSI).

So Appellant went to jail and the military justice office at Sheppard Air Force Base, Texas, began to develop a prosecution strategy for Appellant and his cohorts. But it appears that the prosecutors were unable to prove the case without the assistance of Appellant’s crew, and they struggled with the decision of whether to issue orders to testify with grants of immunity or to pursue pretrial agreements with cooperation clauses. The weeks turned into months, Appellant was transferred to a military confinement facility in New Mexico, and the prosecutors eventually decided to grant immunity and compel the testimony of four other Airmen (including the assault victim). But this decision took so long that charges weren’t preferred against Appellant until June 22, 2010; 74 days after Appellant was transferred to the “transition flight” and 67 days after he began pretrial confinement.

An Article 32 pretrial investigation was conducted and the charges were referred to a general court-martial. Appellant was arraigned on August 10, 2010 (123 days after beginning “transition flight,” and 116 days after beginning confinement), and the parties litigated a Defense motion alleging that the Government had violated Appellant’s speedy trial rights by its pretrial processing of the case. The military judge agreed with the Defense, and dismissed the case with prejudice for violation of the statutory speedy trial guarantee of Article 10, UCMJ, and without prejudice for violation of the regulatory speedy trial guarantee of Rule for Courts-Martial 707. The Government moved for reconsideration, which was denied, and then the Government filed an interlocutory appeal under Article 62.

The case moved to the Air Force CCA at Joint Base Andrews, Maryland, where delay has become its own issue already considered by CAAF in United States v. Merritt, No. 13-0283/AF, 72 M.J. 483 (link to slip op.) (CAAFlog case page). The Government submitted its appeal to the CCA on September 20, 2010, the Defense responded on October 8, and multiple requests for expedited consideration were submitted by both sides. Despite all this, five months passed before the CCA issued its decision on March 9, 2011, reversing the military judge, reinstating the charges against Appellant, and returning the case to Texas.

Appellant remained in pretrial confinement throughout this period, and his repeated requests for release were all denied. But despite the four grants of immunity, the Government was apparently desperate to avoid a contested trial as it agreed to a sweetheart deal with Appellant that allowed him to enter conditional pleas of guilty (ensuring preservation of his speedy trial claims for appeal) and limited his confinement to the less than a year of time already served (my math shows that Appellant’s guilty pleas exposed him to a maximum term of confinement for 42.5 years). The Government also endured a second round of trial-stage litigation of the speedy trial issue, where “the military judge considered the Appellant’s 132-page motion, the government’s 315-page response, and oral argument from both sides.” Gov’t. Br. at 5-6 (citations to record omitted). Astonishingly, the Government went through all this for what was the second pretrial agreement in this case. Appellant had withdrawn from the first (and presumably even more generous) agreement in order to litigate his release from pretrial confinement while the case was pending at the CCA.

When the military judge heard Appellant’s second speedy trial motion, he “focused on the delays incurred after the Article 62(a) appeal was brought by the government.” Gov’t Br. at 6 (citation and marks omitted). But this time the judge denied Appellant’s motion, finding that Appellant was not prejudiced by the delays. The military judge then accepted Appellant’s guilty pleas and sentenced him to confinement for two months less than the time Appellant had already served.

The case returned to the AFCCA for the automatic appeal, where Appellant raised the same two issues that are now before CAAF:

I. Whether the military judge erred when he only considered the period of time of appellant’s Article 62, UCMJ, appeal for the purpose of his speedy trial motion.
II. Whether the appellant was denied his Sixth Amendment right to a speedy trial when his court-martial occurred 350 days after he was placed in pretrial confinement.

In a short, unpublished opinion issued more than two years after the March 31, 2011, guilty plea, the CCA avoided significant discussion of its own role in the long odyssey of this case, noting that the text of Article 62 excludes virtually all delays in the processing of Government appeals from speedy trial considerations. Instead, the court “took a second look at the Government’s processing of this case prior to 10 August 2010 to determine whether the appellant’s rights to a speedy trial were violated. After doing so, we still find they were not.” United States v. Danylo, No. 37916, slip op. at 3 (A.F.Ct.Crim.App. Apr. 17, 2013) (link to unpub. op.). The CCA also conducted its own analysis of the four factors identified by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972):

Those factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appell[ant] made a demand for a speedy trial; and (4) prejudice to the appell[ant]. The Supreme Court pointed out that the four factors are related and must be considered together with other relevant circumstances in the “difficult and sensitive balancing process.

Clearly, the first and third factors weigh against the Government. Both parties have equally compelling arguments to support the second factor. In completing our balancing test, we turn to the issue of prejudice to the appellant as a result of the delay.

Danylo, No. 37916, slip op. at 4 (marks and citations omitted). Its unclear what the CCA saw as the Government’s “compelling argument[]” for the reasons for the delay, considering that the Govrrnment burned a whopping 74 days while deciding to obtain ultimately-superfluous immunity grants for accomplices. But the CCA concluded that there was no prejudice to Appellant, noting that the Defense was not impaired by the delays and that while Appellant’s pretrial “incarceration caused him to miss significant family events, missing family or other social obligations is a common occurrence for military servicemembers.” Id., slip op. at 5.

Notably, the CCA didn’t discuss the fact that Appellant’s 350 days of pretrial confinement exceeded his 10 month sentence by two months, though it did make an odd reference to confinement in excess of “14 months” (perhaps in recognition that with normal credits for good time, Appellant’s 350 days served is equivalent to 14 months adjudged). However, the CCA “also note[ed] that some of the appellant’s anxiety can be attributed to his own misconduct while in pretrial confinement.” Id., slip op. at 5. The fact that Appellant continued to commit misconduct while in pretrial confinement is pretty surprising, considering the deal he got.

Ultimately the CCA came to the wholesale conclusions that there was no violation of Appellant’s regulatory speedy trial right under Rule for Courts-Martial 707, his statutory speedy trial right under Article 10, or his constitutional speedy trial rights under the Fifth and Sixth Amendments, and decided both issues against Appellant. Five months later CAAF granted review of the same two issues considered by the CCA.

Appellant’s brief to CAAF makes two broad arguments. The first challenges the common practice of dividing the processing of a case into discreet segments that are analyzed separately for speedy trial issues. Appellant contends that the “speedy trial analysis should encompass the entire time he spent in pretrial confinement.” App. Br. at 16.

To allow time periods to be parsed into separate periods would be tantamount to finding that Appellant had been placed into confinement and released on separate occasions. However, one of the main factors for analyzing violations of a Sixth Amendment right to speedy trial and an Article 10 violation is the “length of delay.” Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005). The decision to analyze separate periods of time serves to mischaracterize the entire time of Appellant’s continuous course of confinement. Such a result goes against the meaning of the Sixth Amendment and would not be justified unless Appellant had been actually released from confinement for a substantial period of time. See Ruffin, 48 M.J. 212.

App. Br. at 17. The second broad argument challenges the exclusion of the time spent awaiting the CCA’s decision on the Government’s interlocutory appeal. Citing the Supreme Court’s decision in United States v. Loud Hawk, 474 U.S. 302 (1986), in which the Court applied the Barker factors to time spent processing interlocutory appeals, Appellant argues that the military judge’s final consideration of the speedy trial issue should have included the entire 350-day time period without allowance for the requirement of Article 62(c) that: “Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.” Appellant’s brief also isn’t shy about calling out the AFCCA, claiming that it “demonstrated a marked lack of institutional vigilance in processing Appellant’s case.” App. Br. at 20-22.

Appellant’s argument goes beyond the easily digested request that CAAF ignore the built-in statutory exclusion of time in Article 62 when considering speedy trial issues under the constitutional standard. He also pits Article 10 against Article 62, asserting that “to allow Article 62(c) to exclude time in its analysis, especially where the AFCCA has evinced a severe lack of institutional vigilance, would necessarily negate the purpose of Article 10 – to prevent the unreasonable delay in the processing of criminal charges.” App. Br. at 26. The brief then performs the typical Barker analysis, emphasizing “government inefficiency” as the reason for the delay, and the length and conditions of the pretrial confinement as the prejudice. App. Br. at 26-31.

Appellant’s brief also contains an interesting section that discusses the involvement in this case of a “Captain Terence Dougherty, the Chief of Military Justice at Sheppard AFB.” App. Br. at 5. Lead Government counsel for this case at CAAF is one Major Terence S. Dougherty, USAF, presumably the same officer identified in Appellant’s brief. That makes this case a very rare example of the same attorney prosecuting both the trial and the appeal of a court-martial, as the separate appellate divisions normally operate in relative isolation from their trial-stage brethren.

The Government’s brief begins with this description of the prosecution’s early strategy:

Between 16 April 2010 and 22 June 2010, the base legal office crafted and implemented a prosecution strategy for Appellant and the four other Airmen involved in Appellant’s criminal misconduct (A1C [JC], AB [AC], Amn Hansknecht, and A1C [JM]). The government was ever-mindful of Appellant’s status in pretrial confinement, his role as the leader of a base-wide drug ring, and the heavy burden that seeking pretrial immunity for Appellant’s fellow miscreants would impose on the legal office and the convening authority. The government’s strategy, therefore, was to bring Appellant to trial and avoid potential pretrial immunity issues by seeking quick guilty-plea resolutions with Appellant’s less-culpable co-actors. Unfortunately, that strategy did not prove fruitful, so the government changed course and sought to immediately prosecute Appellant by granting pretrial immunity to A1C [JC], AB [AC], Amn Hansknecht, and A1C [JM].

Gov’t Br. at 2-3 (citations to record omitted). Other than Appellant, I can find only Hansknecht’s case among the decisions of the AFCCA. Airman Hansknecht was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of wrongful use of cocaine, marijuana, and methamphetamine, and theft of military property of a value of more than $500, in violation of Articles 112a and 121. He was sentenced to reduction to E-1, forfeiture of pay, confinement for three months, and a bad-conduct discharge. The AFCCA affirmed the findings and sentence in an unpublished opinion dated November 8, 2012 (available here). It will be interesting to see how CAAF approaches the successful prosecution of the unconfined Hansknecht at a contested special court-martial in less than five months, while nearly a year passed before the confined Appellant was enticed to plead guilty at a general court-martial.

Beginning its analysis of the first issue, the Government’s brief asserts:

Appellant can only prevail on his first assignment of error if this Court finds that the military judge abused his discretion by following the directive imposed by AFCCA’s Article 62 order, which this Court denied review of on 20 June 2011. According to the “law of the case” doctrine, a trial court is bound by the ruling of a higher appellate court on remand.

Gov’t Br. at 7-8. While it’s true that a trial court is bound by the decisions of a superior appellate court, CAAF’s review of the military judge’s treatment of the AFCCA’s interlocutory decision will not turn on the deferential standard of “abuse of discretion.” Rather, CAAF will review the legal issues in this case de novo, with only the factual findings of the trial judge granted special deference.

There are obvious reasons why CAAF will review the issue in this case de novo. For starters, when CAAF denied Appellant’s petition for review of the AFCCA’s decision, it did so “without prejudice to Appellant raising the issues in the course of direct review.” 70 M.J. 216 (C.A.A.F. 2011) (daily journal). But more generally, Judge Erdmann explained just a few months ago that:

This court reviews de novo the question of whether [an accused] was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law and we are similarly bound by the facts as found by the military judge unless those facts are clearly erroneous.

United States v. Wilson, 72 M.J. 347, 350 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). And while the Government’s brief repeatedly discusses Wilson, it ignores the standard of review articulated in that case (and elsewhere) and concludes its analysis of the first issue with the assertion that, “Therefore, the military judge did not abuse his discretion, and AFCCA’s ruling on this first issue should be affirmed.” Gov’t Br. at 10. Correcting this will likely be an early topic during the oral argument.

On the second issue, the Government’s brief relies on the time-tested method of presenting a tedious chronology of events, to which the Government dedicates six pages. As is normally the case with such self-serving chronologies, many of the events are mere bureaucratic actions. But each event includes a citation to the record, save one:

17 Apr 10          Appellant’s speedy trial clock begins.

Gov’t Br. at 13. This date is hugely significant because it is the day after Appellant’s pretrial confinement began. Whether Appellant’s Sixth Amendment right to a speedy trial was triggered on this date, or whether it began 7 days earlier when Appellant was placed into “transition flight” (that the military judge concluded amounted to “arrest”) could be the dispositive straw the breaks the camel’s back in this case. Best I can tell, CAAF hasn’t squarely considered the triggering event for a Sixth Amendment speedy trial analysis in the military since United States v. Grom, 21 M.J. 53, 55 (C.M.A. 1985), in which the court found:

In general, accountability for speedy-trial tracking begins at the time of pretrial restraint or preferral of charges, whichever comes first.

And the Government’s brief discusses Grom, though not for this point. In Grom the CMA considered delay incurred while the prosecution waited for companion cases to finish (much like the facts of this case) and concluded, “We find nothing improper in this motive, as such. A prosecutorial decision to await the results of another trial to obtain the testimony of a witness is, by itself, a neutral factor.” Grom, 21 M.J. at 56. But “neutral” seems like a funny word in these circumstances, particularly after the AFCCA found the Government presented “compelling argument” to justify the delay.

The Government’s 72-point chronology is then divided “into two pieces: the 116 days prior to trial (16 April 2010 – 23 August 2010), and the 191 days used by the AFCCA to decide the Article 62 appeal (30 August 2010 – 9 March 2011).” Gov’t Br. at 19. On the first period of delay, the Government goes beyond reliance on Grom and discouragement of “Monday-morning quarterbacking” (Gov’t Br. at 20), and rushes to the defense of the trial prosecutors: “If anything, the base legal office should be applauded for its flexibility. Once it realized that its initial reasonable strategy was not working as expected, (12 June 2010), it immediately implemented a second reasonable strategy.” Gov’t Br. at 21. On the second period, the Government rushes less to the defense of the Air Force court, and more to the defense of its secrets:

Appellant cannot reasonably demand, nor should this Court require, that AFCCA open up its deliberative process to the scrutiny of outside observers. Although the government’s Article 62 appeal was the largest portion of time at issue, that time was not unreasonable given the strength and importance of the appeal, and the deference given to AFCCA’s judicial process.

Gov’t Br. at 24. The Government is likely fighting downhill here, as CAAF seems to have a very deep well of patience for the AFCCA’s struggle with its docket.

Finally, on the question of prejudice, the Government’s brief really rolls up its sleeves. Highlighting the absence of evidence in the record to support Appellant’s claims of oppressive conditions of pretrial confinement (Appellant never testified about the conditions), and the lack of prejudice to Appellant’s ability to prepare a defense (this was practically conceded by the trial defense counsel), the Government pulls back the curtains on Appellant’s activities while confined:

In less than a year, Appellant ran afoul of Kirtland AFB Regional Confinement Facility rules and regulations 145 times; he obtained 14 inmate disciplinary reports; and he lost multiple privileges.

Gov’t Br. at 27 (citations to record omitted). The Government asserts that with this record, Appellant likely would have received no credit for good behavior. This is a hard blow to Appellant’s claim, but it is almost immediately followed by a foul one:

Appellant argues that he was unfairly denied “good conduct time” because he was released from confinement when his trial ended. Only Appellant could transmutate a benefit–the termination of confinement–into a detriment. Appellant’s argument, which is disingenuous at best, fails to acknowledge two key facts. First, in accordance with the terms of his second PTA, Appellant would have been released from confinement when his trial ended regardless of the sentence imposed. Second, given Appellant’s pattern of misconduct while in confinement, it is possible that he would not have earned any good conduct time at all.

Gov’t Br. at 29-30 (citations omitted) (emphasis added). “Disingenuous at best” are awfully hard words for an argument advanced by opposing counsel on behalf of a client. But there they are.

Still, the Government must know that military law has long recognized that “a fundamental component of due process is the presumption of innocence accorded the criminal defendant,” and that:

The traditional right to freedom before conviction permits the unhampered preparation of a defense. In addition to the psychological and physical deprivations brought about by incarceration and the hardships caused to members of an incarcerated person’s family, studies have indicated that the conviction rate for jailed defendants materially exceeds that of bailed defendants and a bailed defendant is far more likely to receive probation than his jailed counterpart since the former has been able to demonstrate his reliability under supervision.

Courtney v. Williams, 1 M.J. 267, 271 (C.M.A. 1976) (citations and marks omitted). While the Government rightly points to the absence of evidence of oppressive conditions of pretrial confinement, it stubbornly ignores the reality that pretrial confinement itself is oppressive to the rights of service members.

Since CAAF’s decision last term in Wilson, we’ve watched to see if the court would resurrect the dead, eulogized, buried, and now practically mythical speedy trial guarantee of Article 10, UCMJ. That’s still possible in this case, if CAAF uses the first issue to either revisit and affirm the military judge’s initial ruling finding a violation of Article 10 and dismissing the charges, or to reverse the military judge’s second ruling finding no violation. But it’s just as likely that the court will focus its analysis on the constitutional question presented in the second issue, or the common question of prejudice (and perhaps the lack thereof), to resolve the case.

Predicting that resolution requires a bigger crystal ball than mine.

Case Links:
AFCCA argument audio (interlocutory appeal)
AFCCA opinion (interlocutory appeal) (includes military judge’s ruling dismissing the charges)
AFCCA opinion (post-trial)
Blog post: Are reports of Article 10′s death greatly exaggerated?
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument Preview

3 Responses to “Argument Preview: United States v. Danylo, No. 13-0570/AF”

  1. Caveman says:

    The two Terence Doughertys are indeed one and the same.  Unfortunately, Terry was last seen leaving his home on 3 Dec, and to my knowledge, hasn’t yet been found.

  2. Mike says:

    Think of the hundreds hours spent strategizing, investigating, prosecuting, defending, courtroom time, appellate time etc… for what appears simple use, distro and an A&B amongst criminals. Seems a mountain out of a mole hill. Were the TCs bored?