CAAF decided the Air Force case of United States v. Danylo, No. 13-0570/AF, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Monday, March 24, 2014, narrowly deciding that the delays in the case do not rise to the level of a violation of Appellant’s Sixth Amendment right to a speedy trial, and that the military judge did not err in his speedy trial analysis, affirming Appellant’s conviction and the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Chief Judge Baker dissents, joined by Judge Erdmann.

Appellant was convicted by a general court-martial composed of a military judge alone, 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 because it only capped the confinement at time served, which was 350 days.

But during that 350 days of pretrial confinement Appellant made numerous speedy trial demands, and he even won dismissal of the charges on speedy trial grounds. However, the Government appealed, and 170 days passed (with Appellant still confined) before the Air Force CCA issued an opinion reversing the trial judge’s decision and reinstating the charges. Appellant again moved for dismissal at the trial stage, but the judge denied the motion, focusing on just the delay after the CCA’s decision on the Government’s appeal (reasoning that the CCA had resolved all prior delay in its decision).

On direct appeal, the AFCCA again reviewed the delay prior to the judge’s dismissal, and again found no violation of Appellant’s speedy trial right. CAAF then granted review of two issues:

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.

Judge Stucky begins his majority opinion by noting the limited scope of CAAF’s review in this case, eliminating the possibility that this case might resurrect the dead Article 10 (our #10 story of 2013). CAAF does not consider the speedy trial provisions of either Article 10 or Rule for Courts-Martial 707, as “the only assigned issue in his petition, and the issue this Court granted, was the Sixth Amendment issue.” Slip op. at 6. That issue is analyzed with the familiar four-factor test from Barker v. Wingo:

(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.

Slip op. at 6 (quoting United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))).

The majority easily resolves both the first and third factors, as the Government conceded that both favored Appellant. But the bulk of the court’s analysis – and Chief Judge Baker’s dissent – is focused on the second and fourth factors.

On the second Barker factor (the reasons for the delay), Judge Stucky’s analysis is in two parts: a 116-day delay attributed to the Prosecution, and a 170-day delay attributed to the CCA. For the Prosecution’s delay, Judge Stucky observes that:

The first delay is primarily due to the prosecution’s strategy, which was to turn all four of the other alleged members of a drug ring into witnesses against Appellant. This was a time-consuming approach because it required obtaining immunity for the other witnesses, and it took over three months from the date of Appellant’s entering confinement for the Government to be ready to refer charges to court-martial. However, this strategy was certainly not unusual or inappropriate, and under the circumstances it did not take an inordinate amount of time.

Slip op. at 7. Judge Stucky discusses two other cases in the context of this analysis: Barker, and United States v. Grom, 21 M.J. 53, 57 (C.M.A. 1985). Unfortunately, while Judge Stucky acknowledges that the appellant in Grom was not in pretrial confinement (but was merely held past his end of active duty date), he wholly omits “the fact that Barker did not want a speedy trial.” Barker, 407 U.S. at 534 (emphasis added). He also omits any discussion of the fact that military immunity takes only the stroke of a highly-discretionary pen. The Prosecution didn’t need to wait for the rest of Appellant’s drug ring to sign pretrial agreements before it obtained the immunity that would have forced them to testify against Appellant. But wait it did; out of spite, indifference, or sheer incompetence.

Judge Stucky and the majority also ignore the fact that the long-awaited grants of immunity were ultimately superfluous in this case, as Appellant agreed to plead guilty before the judge dismissed the charges at the end of the 116-day delay. Rather, Judge Stucky and the majority consider the use of 116 days to “investigate the case, convene a pretrial confinement review hearing, prepare and obtain approval for the charges, and hold an Article 32 hearing,” while Appellant demanded a speedy trial from pretrial confinement, to be supported by “substantial justification.” Slip op. at 8. Considering that of all of these tasks, only the investigation of the case requires more than a day (or perhaps two) to accomplish, the majority is exceedingly generous with the Prosecution.

But it’s even more generous with the Air Force CCA:

While Appellant’s appeal was pending, different panels of the CCA issued decisions in 108 cases, three of which were Article 62 appeals. Of these three, Appellant was the only one in pretrial confinement. The CCA’s delay occurred even though both parties had sought to expedite the processing of the Government’s Article 62 appeal. The CCA also provided no explanation as to why speedier disposition was not practicable.

Despite our significant concern about the processing time at the lower court, we are reluctant to pierce the veil of the CCA’s decision-making process and attempt to regulate the day-to-day mechanics of the legal process assigned to the court.

Slip op. at 9-10 (citations omitted). In the dissenting opinion, Chief Judge Baker doesn’t discuss the reasons for the 116 days of delay attributed to the Prosecution, but he does discuss the delay at the CCA:

In my view, Appellant should prevail on the second factor based on these factual findings and the absence of any counterbalancing reason or explanation for the delay. For sure, there might well be good reason why the CCA took the time it did to decide this case, even with the extenuating factors of pretrial confinement in the context of an underlying speedy trial claim. An appellate court might reasonably take six months to debate and deliberate on a difficult or complex question of law. However, in the absence of an appropriate reason explaining the delay, and thus where the only facts that are known are those stated above, factor two is not “more neutral”; it favors Appellant.

Diss. op. at 3-4 (emphasis in original). In the absence of a good reason for CCA delay that is sufficient to trigger a Barker analysis, the dissenters would hold that delay against the Government that “failed to staff the CCA at adequate levels.” Diss. op. at 5. This strikes me as the only rational way to approach this issue. The Service and its CCA may shield the court’s deliberative process from scrutiny by the civilian Court of Appeals, but by doing so they get no deference.

Turning to the fourth Barker factor (prejudice to the Appellant), Judge Stucky explains that:

There are “three similar interests” relevant to the prejudice analysis: “(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired.”

Slip op. at 11 (quoting United States v. Moreno, 63 M.J. 129, 138-139 (C.A.A.F. 2006)). And while he writes that “first interest weighs in Appellant’s favor,” slip op. at 11, it’s hard to believe that the majority really feels that way. Appellant’s 350 days of time served was two months greater than the adjudged sentence of ten months, but Judge Stucky explains that Appellant did not receive credit for these two months “because he waived the issue.” Slip op. at 11-12. This finding of waiver seems to be based on a provision in the pretrial agreement whereby Appellant “agreed to waive all waivable motions.” Slip op. at 12.

This conclusion is paradoxical for two reasons. First, the majority’s finding of waiver based on the terms of the pretrial agreement means that Appellant waived the issue of credit for the excessive confinement before the issue arose. Of interest, the AFCCA recently rejected the possibility of such a prospective waiver in United States v. Basabe, No. 38277 (A.F.Ct.Crim.App. Feb. 19, 2014) (link to slip op.). In Basabe the CCA found “nothing in the record to suggest that at the time he entered his guilty plea, the appellant knew that he might be housed in civilian confinement alongside foreign nationals and prospectively waived his right to seek redress of a statutory violation that had not yet been committed.” Basabe, slip op. at 3. The same analysis applies in Danylo, as it’s hard to imagine that Appellant (who I calculate face a maximum confinement of 42.5 years) ever expected that he’d beat the deal.

The second paradox is how Appellant would have gotten credit for the two months of illegal confinement. The adjudged sentence was ten months and a BCD, and those two months (during which Appellant presumably received pay and allowances) hardly warrant vacation of the punitive discharge. So, through the delays by the Prosecution and at the CCA, Appellant is deprived of a remedy for confinement in excess of what the sentencing authority decided was appropriate for his offenses.

The dissent employs a far more workable approach:

Two months of excessive incarceration is not a long time compared to other periods of incarceration found oppressive under Barker nor is it oppressive in the sense that it is unduly harsh. It is nonetheless time spent above and beyond the actual sentence received, and that is prejudicial where such incarceration is based on unreasonable delay attributable to the government. Thus, it is not logical to conclude that time served in confinement beyond what was lawfully adjudged or should have been served is not oppressive or prejudicial.

Diss. op. at 6-7. I don’t think that the dissent seeks a per se rule on this issue, but instead Chief Judge Baker considers this factor in the context of the Government’s failure to rationalize the delay at the CCA. As I wrote above, if the CCA wants to keep its internal processes secret, then it deserves no deference when those processes fail.

The last section of Judge Stucky’s majority opinion addresses the military judge’s final analysis of the speedy trial issue in this case, made just before the guilty plea. In that analysis, the trial judge considered the pretrial delay in discreet pieces, and focused on only the time after the CCA’s decision on the Government’s interlocutory appeal. The majority endorses this approach (and the dissent does not discuss it), with Judge Stucky writing:

In our speedy trial jurisprudence, we break down the periods of delay, analyze the reasons for each, and may express concern with some but not other periods of delay. . . . The military judge did not err in focusing on one portion of the delay in his speedy trial analysis where the CCA, by whose judgment the military judge was bound, had already ruled on the other portion.

Slip op. at 16-17.

There were a lot of bad facts for Appellant in this case. For starters, he’s a self-admitted violent drug dealer, giving the Government ample reason to put him in pretrial confinement. Further, while there is no bail in the military, Appellant was far from a model prisoner, and his own misconduct is what kept him confined pending the Government’s appeal. And while the delays in this case totaled approximately one year, that year is not an outrageously long time.

Despite these facts, the Government just barely squeaks by with a win. But it’s still a win for the Government. CAAF’s consideration of this case and its narrow decision may make the court look strict. But I suspect that the military services will be emboldened by the civilian court’s generosity.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: United States v. Danylo, No. 13-0570/AF”

  1. AF JAG says:

    @Zachary Spillman:  “The Prosecution did not need to wait for the rest of Appellant’s drug ring to sign pretrial agreements before it obtained immunity that would force them to testify against Appellant.  But wait it did, out of spite, indifference, or sheer incompetence.”
    SLOW DOWN.  You mean to tell me that the government waiting to court-martial the “big fish” until after the “little fish” have already pleaded guilty represents “spite, indifference or incompetnence.”  Did you ever consider that it might be legit for the government to have sworn guilty pleas in hand with with which to impeach potentially recalcitrant witnesses keen on minimizing at their buddy’s forthcoming trial?  It seems like that is a legitimate purpose . . . and CAAF thought so too.  Your point about the Appellant’s ultimate guilty plea is a red herring because the government DID NOT KNOW the accused would ultimately decide to plead guilty when they were securing PTAs and immuninity for drug ring members to sure up their case.  Indeed, the government’s ability to secure these other PTAs and immunity grants is likely what obliged Appellant to ultimatley plead guilty.  In sum, “Hope is not a strategy.”  And criticizing the government for securing PTAs and immunity to nail down their case rather than simply waiting and hoping for a guilty plea that may never come seems unwarranted.
    Appellant suffered no prejudice to his ability to present his case because of the government’s prosecution strategy, and suffered no unusual circumstances in pretrial confinement justifying a finding of prejudice.  Did AFCCA take entirely too long to decide this case?  Absolutely, and the Appellate Government Division said so and requested expedited review along side the defense.  But 6 months to issue an appelate decision does not alone a case of prejudice make under the 6th Amendment speedy trial right. 
    I found the rest of your analysis factual and reasonable, and as always, am pleased at your work to keep CAAFLog up to date with the latest military justice developments.  But let’s save the hyperbolic ad hominem attacks on the government for “spite, indifference, and incompentence” for a case that deserves it. 

  2. Another AF JAG says:

    Concur wholeheartedly with AF JAG.
    Though the government could have pursued testimonial immunity of the lesser fish prior to Danylo’s court … there are two reasonable strategic reasons not to do so:
    1.  The potential difficulty of defending the inevitable Kastigar motion for the lesser fish.  To adequately respond and protect the lesser fish’s immunity would significantly impact the manpower, effort, and time to prosecute the group.  It’s fair weigh that inconvenience against an accused in pretrial … but if we are talking a 3 month delay it doesn’t strike me as unreasonable.  In addition, Accused was getting full pay while in pretrial.
    2.  Even considering testimonial immunity, one would expect the lesser fish to be extremely more forthright after their cases had been resolved … rather than when their future was so uncertain.
    This is a very interesting case because it is the appellate court, who is charged with protecting the accused, that is most easily criticized for the delays.

  3. Zachary D Spilman says:

    “Climbing the ladder” (cutting deals with lesser offenders to build a case against bigger ones) is nothing new in the federal system, where there’s bail. But there’s no bail in the military (something I discussed in my argument preview in this case).

    The only reason to wait until deals are signed before compelling a military accused to testify in a case like this is to avoid the Kastigar issue (the possibility that the immunized testimony is improperly used against the accused in a later prosecution). See, e.g., United States v. Vela, 71 M.J. 283, (C.A.A.F. 2012) (CAAFlog case page); United States v. Morrissette, 70 M.J. 431 (C.A.A.F. 2012) (CAAFlog case page). 

    But when the big fish is in PTC and demanding a speedy trial, the right thing to do is to sit down with the accomplices and their counsel and explain that they can either take the (presumably) good deals, or they can get orders to testify and their files will be shipped off to a different office for prosecution where they will get no credit for cooperation (and where the testimony of anyone who does take the deal will be used against them). The Prosecution’s failure to do this, while letting the case fester, is the problem.

    Notably, despite letting over two months pass, the Prosecution in this case failed to get the agreements it wanted. From the Government’s brief to CAAF (also discussed in my argument preview):

    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).

    It took from April 16 to June 22 for the Prosecution to discover the obvious answer. If this isn’t spite, indifference, or incompetence, then I don’t know what it is.


  4. Joseph Wilkinson says:

    <i>But I suspect that the military services will be emboldened by the civilian court’s generosity.</i>
    Bad news if so.  I once saw a commander convert a bunch of “Article 15/Chapter” offenses into a minor-league court-martial so he could get a PITA Soldier out of the way in PTC, or at least I think that’s what his motive was (to be fair, the command did support a 10-GEN afterwards).  And I had a case where an MPI officer threatened a Soldier with PTC unless he squealed (which he promptly did…a major factor, I think, in the acquittal of the man he squealed on).  
    If you’re not constrained by Article 10 and similar worries, PTC is a great little disciplinary tool – it’s faster than an Article 15, much easier than a summary court-martial, and a heck of a lot scarier than push-ups.