U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32732
________________________
UNITED STATES
Appellee
v.
David G. GONZALEZ HERNANDEZ
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 2 August 2023
________________________
Military Judge: Matthew P. Stoffel.
Sentence: Sentence adjudged 16 February 2022 by SpCM convened at
Kadena Air Base, Japan. Sentence entered by military judge on 20
March 2022: Bad-conduct discharge, confinement for 4 months and 1
day, reduction to E-1, and a reprimand.
For Appellant: Major David L. Bosner, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major
Joshua M. Austin, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen
Payne, Esquire.
Before JOHNSON, GRUEN, and MENDELSON, Appellate Military
Judges.
Judge MENDELSON delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge GRUEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Gonzalez Hernandez, No. ACM S32732
MENDELSON, Judge:
In accordance with Appellant’s pleas and pursuant to a plea agreement, a
special court-martial comprised of a military judge sitting alone convicted Ap-
pellant of one specification of failure to obey a lawful order; two specifications
of willfully damaging non-military property; and one specification of stalking,
in violation of Articles 92, 109, and 130, Uniform Code of Military Justice
(UCMJ),
10 U.S.C. §§ 892, 909, 930.1 The court-martial sentenced Appellant to
a bad-conduct discharge, confinement for four months and one day, reduction
to the grade of E-1, and a reprimand. The convening authority took no action
on the findings or sentence.
Appellant personally raises a single issue on appeal, pursuant to United
States v. Grostefon,
12 M.J. 431 (C.M.A. 1982): whether the Government vio-
lated Appellant’s right to speedy trial under Article 10, UCMJ,
10 U.S.C. § 810.
We find the Government did not violate Appellant’s speedy trial rights under
Article 10, UCMJ. Additionally, after reviewing the entire record of this pro-
ceeding, we have determined the findings and sentence as entered are correct
in law and fact, and we affirm the findings and sentence.
I. BACKGROUND
Appellant was stationed at Kadena Air Base, Japan, where he met AJ, an-
other junior enlisted Airman, at the First Term Airman Course in May of 2021.
During the summer of 2021, AJ contacted Appellant by text message, asking
for information about the defense language proficiency test. Subsequently, the
two spent time together eating meals, bowling, hiking with a group of friends,
and playing video games. In mid-July 2021, Appellant told AJ he would like
their friendship to become a relationship. AJ responded that she was not in-
terested in a relationship. A few days later, Appellant slashed all four tires on
AJ’s car with a pair of scissors. A week later, after AJ had her tires repaired,
Appellant again slashed all four tires and spray painted the word “whore” on
three sides of AJ’s car. Throughout the rest of the summer and into the fall,
Appellant followed AJ around Kadena Air Base on multiple occasions, placing
her in fear. On 20 October 2021, Appellant drove his vehicle within 100 yards
of AJ’s residence numerous times, violating a no-contact order issued by his
commander. Two days later, on 22 October 2021, Appellant was placed in pre-
trial confinement.
1 Unless otherwise specified, all references to the UCMJ and Rules for Courts-Martial
are to the Manual for Courts-Martial, United States (2019 ed.). Pursuant to the plea
agreement, one specification of wrongful possession of a destructive device and one
specification of stalking were withdrawn and dismissed with prejudice.
2
United States v. Gonzalez Hernandez, No. ACM S32732
Ultimately, charges were preferred and referred for Appellant’s offenses, a
plea agreement was negotiated, and Appellant was arraigned on 15 February
2022, having served 116 days in pretrial confinement as of that date.
A. Appellant’s Motion to Dismiss
Before trial, on 24 January 2022, Appellant moved to dismiss the charges
and specifications on the grounds that the Government failed to take immedi-
ate steps or use reasonable diligence to bring the case to trial, in violation of
Article 10, UCMJ. In denying Appellant’s motion, the military judge made the
following findings of fact that we find are supported by the record.
B. Military Judge’s Findings of Fact
On 24 July 2021, AJ made a sworn statement to law enforcement, al-
leging Appellant had been following her around base on several different
days. AJ also reported that she believed Appellant defaced her personal
vehicle and slashed all four of her tires.
On or about 5 August 2021, Security Forces Office of Investigations
(SFOI) took possession of AJ’s vandalized car, including the slashed tires.
On 22 September 2021, SFOI seized four knives from Appellant’s room
with reason to believe the knives could have been used to slash AJ’s tires.
Between on or about 22 September 2021 and 3 January 2022, SFOI sent
the tires and knives to the United States Army Criminal Investigation La-
boratory (USACIL) for scientific analysis. A forensic chemist completed a
forensic examination and produced a trace evidence report on those items
on 3 January 2022. Toolmark and tool evidence examinations were also
conducted at USACIL, in an attempt to determine whether the knives
seized from Appellant were used in damaging AJ’s tires. An examiner sub-
mitted a report of this analysis on 4 February 2022.
On 19 August 2021, Appellant asserted his right to a speedy trial
through his trial defense counsel. This demand occurred prior to both Ap-
pellant entering pretrial confinement and the preferral of charges, and was
included in trial defense counsel’s notice of representation.
Appellant was observed coming within 100 yards of AJ’s residence on
the evening of 20 October 2021, in violation of a no-contact order previously
issued by his squadron commander.2
On 22 October 2021, Appellant was placed into pretrial confinement.
Following Appellant’s entry into pretrial confinement, a neutral and
2 The record contains a copy of the no-contact order showing it was issued on 30 August
2021.
3
United States v. Gonzalez Hernandez, No. ACM S32732
detached officer found probable cause for continued confinement. Appel-
lant’s commander submitted a timely review within 72 hours and ordered
the confinement be continued.
Additionally, on 22 October 2021, investigators responded to a report of
a possible improvised explosive device found in Appellant’s personal vehi-
cle. Investigators conducted a search of Appellant’s vehicle and located a
PVC pipe with balloons fastened, and a gas can containing an undeter-
mined fluid. Those items were seized and the fluid was analyzed on 29 Oc-
tober 2021.
The pretrial confinement hearing was initially set for 27 October 2021,
but the hearing was held on 29 October 2021 pursuant to Defense’s request
for delay.
On 5 November 2021, Appellant’s commander preferred charges
against him. The Government’s ready date for the preliminary hearing was
15 November 2021. On 23 November 2021, the preliminary hearing was
conducted.3 On this same date, the Defense submitted a formal discovery
request which also included Appellant’s demand for a speedy trial.
On 2 December 2021, the preliminary hearing officer (PHO) completed
his report and provided it to the office of the servicing staff judge advocate.
When appointing the PHO, the special court-martial convening authority
informed the PHO that the preliminary hearing was his primary duty until
it was completed, and directed the PHO to submit the report and recom-
mendations within eight calendar days of the conclusion of the hearing.
The PHO did not submit the report within that time, instead submitting it
on the ninth calendar day. During the nine-day period, the PHO did not
work on his report for six of those days. Of those six days, four days were
the result of the PHO enjoying the full Thanksgiving holiday weekend and
two days were the result of a no-notice military duty.4
On 6 December 2021, the case paralegal provided the Defense a copy of
the preliminary hearing report. In the report, the PHO advised against
3 Although not included in the military judge’s findings of fact, the record demonstrates
that trial defense counsel was not available for the preliminary hearing until 23 No-
vember 2021. Specifically, the record includes email correspondence from trial defense
counsel to the base legal office stating: “As for exclusion of time, that is correct: no
issues with excluding the time between 15–22 November due to Defense unavailability
for the [preliminary hearing].”
4 The PHO’s report explains the two-day delay was due to an emergency deployment
response exercise.
4
United States v. Gonzalez Hernandez, No. ACM S32732
preferral of Specification 2 of Charge I, which alleged wrongful possession
of an explosive device.
On 28 December 2021, all preferred charges and specifications were re-
ferred against Appellant, including Specification 2 of Charge I. The re-
ferred charges included one charge and two specifications alleging viola-
tions of Article 92, UCMJ, with one specification alleging a failure to obey
a lawful order for violating a no-contact order issued by Appellant’s com-
mander, and one specification alleging a violation of a lawful general regu-
lation for possession of a destructive device; one charge and two specifica-
tions of damaging non-military property, in violation of Article 109, UCMJ;
and one charge with two specifications alleging stalking, in violation of Ar-
ticle 130, UCMJ. The referred charge sheet was served on Appellant ten
days after referral, on 7 January 2022.
After receipt of the preliminary hearing report, but prior to the referral
of charges, the Defense submitted a by-name request for a forensic psy-
chologist on 21 December 2021. The following day, on 22 December 2021,
the Defense submitted a request for an expert in weapons and firearms.
Additionally, after receipt of the referred charges, on 8 January 2022 the
Defense submitted a request for expert assistance in forensic chemistry.
All three requests were routed to the convening authority on 11 January
2022, and were denied by the convening authority on 26 January 2022.
On 11 January 2022, trial counsel formally responded to defense coun-
sel’s first discovery request that was originally sent on 23 November 2021.
Through 8 February 2022, the Prosecution was still fulfilling its discovery
obligations and providing matters requested by the Defense, to include
statements made by Appellant.
On 8 February 2022, Appellant submitted an offer for plea agreement.
The agreement was accepted by the convening authority on 10 February
2022. Appellant was arraigned on 15 February 2022, having served 116
days in pretrial confinement as of that date.5
5 Although not included in the military judge’s findings of fact, the record demonstrates
there was a one-week delay due to the military judge’s unavailability. Specifically, the
record contains an email from trial defense counsel stating: “[T]he Defense is available
for the [G]overnment’s ready date of 7 February; however, as I have previously men-
tioned, the [chief circuit military judge] informed everyone that no military judges
would be available the week of 7 February 2022 due to [military judge] training and
asked that no one docket anything that week.” The record also demonstrates that the
trial was initially set for 14 February 2022, but was continued by one day due to Jap-
anese travel restrictions and inclement weather. Appellant did not object to the one-
day continuance.
5
United States v. Gonzalez Hernandez, No. ACM S32732
While Appellant was in pretrial confinement, trial defense counsel was
required to coordinate times in advance with the military confinement fa-
cility to speak to Appellant on the phone. Also, during pretrial confine-
ment, Appellant’s leadership assisted in coordinating with a local auto
dealer to keep Appellant from going into arrears with an auto payment.
As a result, Appellant received a four-month delay in making car pay-
ments, and was only responsible for a $25.00 late fee.
After making these extensive findings of fact and weighing the factors
outlined in Barker v. Wingo,
407 U.S. 514 (1972), the military judge denied
Appellant’s motion, ruling “the [G]overnment, as a whole, moved with rea-
sonable diligence in bringing the case to trial.” Appellant ultimately
pleaded guilty on 16 February 2022 in accordance with the plea agree-
ment and was sentenced on the same date.
II. DISCUSSION
A. Law
Whether an appellant was denied his right to speedy trial under Article 10,
UCMJ, is a question of law we review de novo. United States v. Cooley,
75 M.J.
247, 259 (C.A.A.F. 2016) (citing United States v. Cossio,
64 M.J. 254, 256
(C.A.A.F. 2007) (additional citations omitted). However, “a military judge’s
findings of fact [ ] will be reversed only if they are clearly erroneous.” United
States v. Mizgala,
61 M.J. 122, 127 (C.A.A.F. 2005) (citations omitted). “[A]
litigated speedy trial motion under Article 10[, UCMJ,] is not waived by a sub-
sequent unconditional guilty plea.”
Id.
Article 10, UCMJ, provides in pertinent part: “When a person subject to
this chapter is ordered into arrest or confinement before trial, immediate steps
shall be taken . . . to try the person or to dismiss the charges and release the
person.”
10 U.S.C. §§ 810(b)(1), 810(b)(1)(B). The speedy trial requirement of
Article 10, UCMJ, “does not demand constant motion but does impose on the
Government the standard of ‘reasonable diligence in bringing the charges to
trial.’” Cooley,
75 M.J. at 259 (quoting Mizgala,
61 M.J. at 129). “Short periods
of inactivity are not fatal to an otherwise active prosecution.” Mizgala,
61 M.J.
at 127 (citation omitted). Appellate courts should remain mindful of “the pro-
ceeding as a whole and not mere speed.”
Id. at 129 (citation omitted).
“[A]lthough Sixth Amendment[6] speedy trial standards cannot dictate
whether there has been an Article 10 [,UCMJ,] violation, the factors from
Barker v. Wingo are an apt structure for examining the facts and
6 U.S. CONST. amend VI.
6
United States v. Gonzalez Hernandez, No. ACM S32732
circumstances surrounding an alleged Article 10 [,UCMJ,] violation.”
Id. at 127
(citations omitted). Accordingly, “our framework to determine whether the
Government proceeded with reasonable diligence includes balancing the fol-
lowing four factors: (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.”
Id. at 129 (citing Barker,
407 U.S. at 530) (additional citation
omitted). However, these factors are not “talismanic” and “must be considered
together with such other circumstances as may be relevant.” United States v.
Wilson,
72 M.J. 347, 351 (C.A.A.F. 2013) (quoting Barker,
407 U.S. at 533).
When assessing the reason for delay, this court considers the context, be-
cause a “delay that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.” Barker,
407 U.S. at 531.
Additionally, a delay intended to “hamper the defense” should be weighted
more heavily than a “more neutral reason such as negligence.”
Id. Where the
delay is based on the prosecution’s trial strategy, a time-consuming approach
is permissible if the strategy is “not unusual or inappropriate” under the cir-
cumstances. United States v. Danylo,
73 M.J. 183, 187 (C.A.A.F. 2014). “[O]rdi-
nary judicial impediments, such as crowded dockets, unavailability of judges,
and attorney caseloads, must be realistically balanced.” United States v.
Kossman,
38 M.J. 258, 261–62 (C.M.A. 1993).
The Supreme Court of the United States identified three interests, related
to the speedy trial protection, to consider when assessing prejudice: (1) “to pre-
vent oppressive pretrial incarceration;” (2) “to minimize anxiety and concern
of the accused;” and, most importantly, (3) “to limit the possibility that the
defense will be impaired.” Barker,
407 U.S. at 532 (footnote omitted).
B. Analysis
On appeal, Appellant personally asserts a violation of his right to speedy
trial under Article 10, UCMJ. Appellant notes he was in pretrial confinement
for 116 days total, and specifically raises two time periods in which the Gov-
ernment failed to proceed with reasonable diligence: (1) the nine days the PHO
took to complete the preliminary hearing report, and (2) the ten days the Gov-
ernment took to serve the referred charge sheet on Appellant. Appellant con-
cedes the military judge’s findings of fact were not clearly erroneous and urges
this court to accept the findings of fact. However, Appellant maintains that the
military judge erred as a matter of law in weighing the Barker factors and
impermissibly placed the burden on Appellant to demonstrate prejudice.
We find sufficient evidence in the record to support the military judge’s
findings of fact. We review de novo whether those facts demonstrate a lack of
reasonable diligence under Article 10, UCMJ, beginning with an analysis of
the Barker factors.
7
United States v. Gonzalez Hernandez, No. ACM S32732
1. Length of the Delay
The first factor under the Barker analysis serves as a “triggering mecha-
nism,” meaning that unless the period of delay is unreasonable on its face,
“there is no necessity for inquiry into the other factors that go into the balance.”
Cossio,
64 M.J. at 257 (internal quotation marks and citation omitted). Alt-
hough the Barker court found “no constitutional basis for holding that the
speedy trial right can be quantified into a specified number of days or months,”
407 U.S. at 523, the President has designated 120 days as a presumptively
prejudicial length of delay in bringing a confined accused to trial by court-mar-
tial. Rule for Courts-Martial (R.C.M.) 707(a)(2). However, R.C.M. 707 is not a
limitation on Article 10, UCMJ, the protections of which are “distinct and
greater.” Mizgala,
61 M.J. at 125 (citations omitted). Thus, it is possible to
meet the minimum requirement for trial within 120 days under R.C.M. 707,
but still violate Article 10, UCMJ, if prosecution was not reasonably diligent.
Our superior court held that a full Barker analysis was appropriate where
the accused made a timely demand for speedy trial and had been held in con-
tinuous pretrial confinement for 117 days after he moved for relief. Cossio,
64
M.J. at 257. Likewise, in Mizgala, a 117-day period was sufficiently unreason-
able to warrant further analysis.
61 M.J. at 128–29; see also Kossman,
38 M.J.
at 261 (“We see nothing in Article 10[, UCMJ,] that suggests that speedy-trial
motions could not succeed where a period under 90—or 120—days is in-
volved.”). Here, the military judge found “in light of the particular circum-
stances of this case, . . . the 116 days the accused has spent in pretrial confine-
ment is facially unreasonable and thus triggers a full analysis in light of the
Barker factors.” We do not disturb this finding.
2. Reasons for the Delay
For this factor, “different weights should be assigned to different reasons.”
Barker,
407 U.S. at 531. “A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the government.”
Id.
(footnote omitted). But “[m]ore neutral reason[s] such as negligence or over-
crowded courts should be weighted less heavily.”
Id. “Finally, a valid reason,
such as a missing witness, should serve to justify appropriate delay.”
Id. On
the other hand, “delay caused by the defense weighs against the defendant.”
Cooley,
75 M.J. at 260 (quotation omitted). In addition, “the Government has
the right (if not the obligation) to thoroughly investigate a case before proceed-
ing to trial.” Cossio,
64 M.J. at 258.
Appellant directs our attention to two time periods in which he maintains
the Government failed to proceed with reasonable diligence: (1) the nine days
the PHO took to complete the preliminary hearing report, and (2) the ten days
the Government took to serve the referred charge sheet on Appellant.
8
United States v. Gonzalez Hernandez, No. ACM S32732
We note that in order to facilitate compliance with Article 10, UCMJ, “the
President shall prescribe regulations setting forth procedures relating to refer-
ral for trial, including procedures for prompt forwarding of the charges and
specifications and, if applicable, the preliminary hearing report . . . .”
10 U.S.C.
§ 810(b)(2). With respect to the preliminary hearing report, the President has
prescribed that the PHO “shall make a timely written report of the preliminary
hearing to the convening authority.” R.C.M. 405(l)(1). In this case, the PHO
was directed to submit the report within eight days, but was one day late in
submitting the report on the ninth day. The PHO’s timeline documented not
working on the report for four days due to the Thanksgiving holiday weekend,
and two days due to a no-notice military exercise. Under these circumstances
we find the one-day delay in providing the preliminary hearing report was
at most a result of negligence, which is “weighted less heavily but neverthe-
less should be considered.” Barker,
407 U.S. at 531.
With respect to the ten days the Government took to serve the referred
charge sheet on Appellant, we note the President has prescribed that “[t]rial
counsel detailed to the court-martial to which charges have been referred for
trial shall cause to be served upon each accused a copy of the charge sheet.”
R.C.M. 602(a). The non-binding discussion of the rule provides that “[t]rial
counsel should comply with this rule immediately upon receipt of the charges.”
R.C.M. 602(a), Discussion.7 Here, the charges were referred on 28 December
2021, and served on Appellant ten days later, on 7 January 2022. While we
note this time period spanned the week between two federal holidays, as
the military judge found in his ruling, the Government did not submit any
testimony or other evidence into the record to explain the ten-day delay, as
it was their burden to do. See Cooley,
75 M.J. at 260 (“[O]utside of an ex-
plicit delay caused by the defense, the Government bears the burden to
demonstrate and explain reasonable diligence in moving its case forward
in response to a motion to dismiss.” (citation omitted)).8 Without any evi-
dence to explain the delay, this delay must be weighted against the Gov-
ernment.
7 See United States v. Quiroz,
55 M.J. 334, 337 (C.A.A.F. 2001) (“[T]he new format for
the Manual [for Courts-Martial] was adopted in 1984 creating a distinction between
the Rules for Courts-Martial set forth in the Executive Order and the non-binding Dis-
cussions of these rules . . . .”).
8 We note the Government made factual assertions to explain the delay in the response
to the motion to dismiss. However, factual assertions in motions are not evidence. See
United States v. Lewis,
42 M.J. 1, 4 (C.A.A.F. 1995) (“Generally speaking, factual as-
sertions in motions are not evidence.”)
9
United States v. Gonzalez Hernandez, No. ACM S32732
Although not specifically raised by Appellant, we have reviewed the
other periods of delay and find neutral or valid reasons for the delays. As
the military judge found, the delay between receipt of the preliminary hear-
ing report and referral of charges was reasonable in light of the PHO’s rec-
ommendation to not refer a specification, the time needed for the convening
authority and legal staff to review the report, and consideration of all these
matters in making a decision on referral.
Moreover, while not a complex case, the forensic examination of the
tires and knives may have provided critical evidence directly bearing on
whether the Government could sustain its burden of proof, particularly
where there was no eyewitness and otherwise only circumstantial evi-
dence. See Cossio,
64 M.J. at 257 (“[I]t was not unreasonable for the Gov-
ernment to marshal and weigh all evidence, including forensic evidence,
before proceeding to trial.” (citation omitted)). Furthermore, several of the
delays were attributable to the Defense, such as delays in conducting both
the pretrial confinement hearing and the Article 32, UCMJ, preliminary
hearing, and defense requests for expert assistance.
However, we note that the seven-day delay due to the unavailability of
the military judge, while a legitimate and neutral reason, must be weighted
in Appellant’s favor because the Government bears ultimate responsibility
for such circumstances. See Barker,
407 U.S. at 531 (“A more neutral reason
such as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defend-
ant.”).
We recognize that Article 10, UCMJ, does not demand constant motion,
and there is no indication the delays were a deliberate attempt to hamper
the Defense. Nonetheless, the one-day delay in providing the preliminary
hearing report, the ten-day delay in serving the referred charges on Appel-
lant, and the seven-day delay due to the military judge’s unavailability
must weigh in Appellant’s favor, however slightly.
3. Demand for Speedy Trial
There is no dispute that Appellant made a demand for speedy trial. This
factor weighs in Appellant’s favor.
4. Prejudice
“Given that Article 10, UCMJ, is triggered only when an accused is in
pretrial confinement, the prejudice prong of the balancing test triggered by
pretrial confinement requires something more than pretrial confinement
alone.” Cooley,
75 M.J. at 262. The Supreme Court has identified three
forms of cognizable prejudice under Barker, including oppressive pretrial
10
United States v. Gonzalez Hernandez, No. ACM S32732
incarceration, anxiety and concern, and—most seriously—impairment of
the accused’s defense. Mizgala,
61 M.J. at 129 (citing Barker,
407 U.S. at
532).
On appeal, Appellant does not allege specific claims of prejudice, but
instead argues that the Government has the burden of proving the absence
of prejudice because the Government ultimately has the burden to show
that the prosecution moved forward with reasonable diligence in response
to a motion to dismiss. See id. at 125. Appellant maintains the Government
could have put on evidence—in an attempt to prove the pretrial conditions
were not oppressive, the lack of impairment to the Defense, and the com-
pliance with trial defense counsel’s request for access to Appellant—but
failed to do so. However, Appellant’s argument misconstrues the burden.
While the Government does have the ultimate burden to demonstrate it
acted with reasonable diligence in bringing Appellant to trial in accordance
with Article 10, UCMJ, balancing of the Barker factors requires Appellant
to demonstrate prejudice. See United States v.
Thompson, 68 M.J. 308, 314
(C.A.A.F. 2010) (finding “[a]ppellant’s failure to demonstrate prejudice” in ap-
plying the Barker factors).
In the motion to dismiss, trial defense counsel alleged, and submitted evi-
dence in support of, two ways in which Appellant suffered prejudice: (1) trial
defense counsel had to coordinate times in advance with the military confine-
ment facility to speak with Appellant by telephone, and (2) Appellant had trou-
ble paying his bills while in confinement resulting in a late fee on his car pay-
ment. However, while the record contains email correspondence dated 10 Jan-
uary 2022 in which trial defense counsel requested that the military confine-
ment facility arrange for Appellant to call him at a designated time, there is
no indication that the call did not happen as requested or that trial defense
counsel was ever denied access to Appellant. Moreover, as the military judge
found in his findings of fact and as supported by the record, Appellant’s lead-
ership assisted in coordinating with a local auto dealer to keep Appellant
from going into arrears with an auto payment. As a result, Appellant re-
ceived a four-month delay in making car payments, and was only responsi-
ble for a $25.00 late fee. While trial defense counsel argued to the military
judge other ways in which Appellant was prejudiced—such as not having
access to his personal cell phone or dorm room, which prevented him from
gathering character letters and accolades for sentencing—the record con-
tains no evidence to support these assertions.
We find Appellant has failed to demonstrate prejudice under any three of
the forms of cognizable prejudice under Barker. There is no evidence that
Appellant’s pretrial confinement was overly harsh or oppressive. Further,
Appellant has not identified “particularized anxiety and concern greater
11
United States v. Gonzalez Hernandez, No. ACM S32732
than the normal anxiety and concern associated with pretrial confine-
ment.” United States v. Wilson,
72 M.J. 347, 354 (C.A.A.F. 2013) (citations
omitted). Finally, and most importantly, the evidence in the record does
not support a conclusion that Appellant’s defense may have been impaired.
Accordingly, this factor weighs in the Government’s favor.
5. Balancing the Barker Factors
Considering the fundamental demand of Article 10, UCMJ, for reasonable
diligence, and balancing the Barker factors, we conclude Appellant was not de-
nied his right to a speedy trial under Article 10, UCMJ. While there may have
been points in time when the Government might have been able to move the
case more expeditiously, we find the balance of the relatively short delays, the
neutral reasons for delay, the need for the Government to marshal and weigh
forensic evidence before proceeding to trial, and the lack of prejudice
demonstrates no relief is warranted. Our review of the record, including
the findings of fact made by the military judge, firmly convinces us that the
Government proceeded to trial with reasonable diligence under the circum-
stances of the case, and Appellant was not denied his Article 10, UCMJ,
right to a speedy trial.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ,
10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
12
