IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Patrick A. MIZGALA, Airman First Class 

U.S. Air Force, Appellant 

No. 04-0382 

Crim. App. No. 34822 

United States Court of Appeals for the Armed Forces 

Argued October 13, 2004 

Decided May 25, 2005 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., 

filed a separate opinion concurring in the result and dissenting 

in part. 

Counsel 

For Appellant: Major James M. Winner (argued); Colonel Beverly 

B. Knott, Lieutenant Colonel Carlos L. McDade, Major Terry L. 

McElyea, and Major Andrew S. Williams (on brief). 

For Appellee: Major John C. Johnson (argued); Colonel LeEllen 

Coacher and Lieutenant Colonel Robert V. Combs (on brief); 

Lieutenant Colonel Gary F. Spencer. 

Military Judge: Gregory E. Pavlik 

This opinion is subject to revision before final publication.
United States v. Mizgala, No. 04-0382/AF 

2

 Judge ERDMANN delivered the opinion of the court. 

 Airman First Class Patrick A. Mizgala entered guilty pleas 

to numerous offenses1

 and was sentenced to a bad-conduct 

discharge, confinement for nine months, forfeiture of all pay 

and allowances, and reduction to the grade of E-1. The 

convening authority reduced the amount of forfeitures but 

approved the balance of the sentence. The United States Air 

Force Court of Criminal Appeals affirmed the findings and 

sentence. United States v. Mizgala, ACM 34822 (A.F. Ct. Crim. 

App. Jan. 23, 2004). 

 Article 10, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 810 (2000), assures the right of a speedy trial to 

military members by providing that “[w]hen 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.” 

Mizgala was initially held in pretrial confinement for 117 

days. His timely motion to dismiss for lack of a speedy trial 

 

1

 Mizgala entered guilty pleas to attempted larceny, unauthorized 

absence, unauthorized absence terminated by apprehension, two 

specifications of wrongfully using cocaine, wrongfully using 

marijuana, larceny of a motor vehicle, and larceny of personal 

property in violation of Articles 80, 86, 112a, and 121, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 912a, 

921 (2000), respectively. 
United States v. Mizgala, No. 04-0382/AF 

3

under Article 10 was denied by the military judge and Mizgala 

entered unconditional guilty pleas to all of the charges. We 

granted review to determine whether Mizgala’s unconditional 

guilty pleas waived appellate review of the speedy trial motion 

and, if not, whether Mizgala was denied his Article 10 right to 

a speedy trial.2

 We find that Mizgala’s unconditional guilty 

plea did not waive his right to appellate review of his 

litigated speedy trial motion, but find that his Article 10 

right to speedy trial was not violated. 

WAIVER 

The Air Force Court of Criminal Appeals found that Mizgala 

waived consideration of his Article 10 claim by his 

unconditional guilty plea. In addition, that court held that 

even if the speedy trial issue had not been waived, there was no 

violation of Mizgala’s Article 10 rights. After noting that the 

 

2

 We granted review of the following issues: 

I. 

WHETHER APPELLANT’S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY 

TRIAL WAS WAIVED BY AN UNCONDITIONAL GUILTY PLEA IF THE 

GOVERNMENT DID NOT BRING APPELLANT TO TRIAL WITH REASONABLE 

DILIGENCE, TRIAL DEFENSE COUNSEL LITIGATED THE MATTER AT 

TRIAL, AND APPELLANT DID NOT AFFIRMATIVELY WAIVE HIS RIGHT 

TO A SPEEDY TRIAL. 

II. 

WHETHER APPELLANT’S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY 

TRIAL WAS VIOLATED IF THE GOVERNMENT DID NOT BRING 

APPELLANT TO TRIAL WITH REASONABLE DILIGENCE. 
United States v. Mizgala, No. 04-0382/AF 

4

military judge incorrectly used a “gross negligence” standard, 

the court concluded that the military judge’s error was not 

prejudicial, citing Barker v. Wingo, 407 U.S. 514 (1972). 

Speedy Trial under the UCMJ

Congress enacted various speedy trial provisions in the 

UCMJ to address concerns about “the length of time that a man 

will be placed in confinement and held there pending his trial”; 

to prevent an accused from “languish[ing] in a jail somewhere 

for a considerable length of time” awaiting trial or disposition 

of charges; to protect the accused’s rights to a speedy trial 

without sacrificing the ability to defend himself; to provide 

responsibility in the event that someone unnecessarily delays a 

trial; and to establish speedy trial protections under the UCMJ 

“consistent with good procedure and justice.” Uniform Code of 

Military Justice: Hearings on H.R. 2498 Before a Subcomm. of 

the House Comm. on Armed Services, 81st Cong. 905-12, 980-983, 

1005 (1949). See United States v. Tibbs, 15 C.M.A. 350, 359, 35 

C.M.R. 322, 331 (1965)(Ferguson, J., dissenting); United States 

v. Hounshell, 7 C.M.A. 3, 7-8, 21 C.M.R. 129, 133-34 (1956). 

Where an accused is incarcerated pending disposition of 

charges under the UCMJ, Congress has placed the onus on the 

Government to take “immediate steps” to move that case to trial. 

Article 10, UCMJ. “Particularly, [Congress] indicated that 
United States v. Mizgala, No. 04-0382/AF 

5

delay cannot be condoned if the accused is in arrest or 

confinement.” United States v. Wilson, 10 C.M.A. 337, 340, 27 

C.M.R. 411, 414 (1959). 

 While our cases have sometimes adopted different approaches 

to Article 10 speedy trial issues, they have consistently 

stressed the significant role Article 10 plays when 

servicemembers are confined prior to trial. We have referred to 

the right to a speedy trial as a “fundamental right” of the 

accused, United States v. Parish, 17 C.M.A. 411, 416, 38 C.M.R. 

209, 214 (1968), and as “[u]nquestionably . . . a substantial 

right,” Hounshell, 7 C.M.A. at 6, 21 C.M.R. at 132. A number of 

our earlier cases included speedy disposition of charges under 

the concept of “military due process.” United States v. Prater, 

20 C.M.A. 339, 342, 43 C.M.R. 179, 182 (1971) (citing United 

States v. Schlack, 14 C.M.A. 371, 34 C.M.R. 151 (1964)). See

also United States v. Williams, 16 C.M.A. 589, 593, 37 C.M.R. 

209 (1967). 

 The Government urges us to find that an unconditional 

guilty plea effectively waives a servicemember’s Article 10 

speedy trial rights in all instances. In support of their 

argument the Government directs our attention to Sixth Amendment 

jurisprudence, Rule for Courts-Martial (R.C.M.) 707(e), and the 

Speedy Trial Act of 1974, Pub. L. No. 93-619, 88 Stat. 2070, and 

points out that the speedy trial protection under each of those 
United States v. Mizgala, No. 04-0382/AF 

6

provisions is waived by an unconditional guilty plea. We will 

examine each of these areas in turn. 

Sixth Amendment

The Sixth Amendment to the United States Constitution 

contains the constitutional guarantee to a speedy trial.3

 

Although the text of the amendment does not address waiver, 

courts have held that the Sixth Amendment right is waived by a 

voluntary guilty plea. See Cox v. Lockhart, 970 F.2d 448, 453 

(8th Cir. 1992)(“A voluntary plea of guilty constitutes a waiver 

of all non-jurisdictional defects[,] . . . [and] the right to a 

speedy trial is non-jurisdictional in nature.”) (citation 

omitted); Tiemans v. United States, 724 F.2d 928, 929 (11th Cir. 

1984) (“[A] guilty plea waives all non-jurisdictional defects 

occurring prior to the time of the plea, including violations of 

the defendant’s rights to a speedy trial and due process.”). 

We have consistently noted that Article 10 creates a more 

exacting speedy trial demand than does the Sixth Amendment. 

United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003); United 

States v. King, 30 M.J. 59, 62 (C.M.A. 1990) (citing United 

States v. Powell, 2 M.J. 6 (C.M.A. 1976); United States v. 

Marshall, 22 C.M.A. 431, 47 C.M.R. 409 (1973)). Not only is the 

 

3

 The Sixth Amendment provides, in pertinent part: “In all 

criminal prosecutions, the accused shall enjoy the right to a 

speedy and public trial . . . .” 
United States v. Mizgala, No. 04-0382/AF 

7

demand for a speedy trial under the UCMJ more exacting, by 

virtue of Article 98, UCMJ, 10 U.S.C. § 898 (2000), unreasonable 

delay in disposing of criminal charges in the military is 

unlawful.4

 See Powell, 2 M.J. at 8; United States v. Mason, 21 

C.M.A. 389, 393, 45 C.M.R. 163, 167 (1972). While the full 

scope of this “more exacting” Article 10 right has not been 

precisely defined by this court, it cannot be “more exacting” 

and at the same time be “consistent” with Sixth Amendment 

protections. 

Rule for Courts-Martial 707

Rule for Courts-Martial 707 contains the speedy trial 

provision in the Rules for Courts-Martial. Rule for CourtsMartial 707(e) provides that “a plea of guilty which results in 

a finding of guilty waives any speedy trial issue as to that 

offense.” We have found, however, that the language of Article 

10 is “clearly different” from R.C.M. 707 and have held that 

Article 10 is not restricted by R.C.M. 707. Cooper, 58 M.J. at 

58-60 (holding that the protections of Article 10 extend beyond 

arraignment); Kossman, 38 M.J. at 261 (“[I]n the area of 

 

4

 Article 98, UCMJ, 10 U.S.C. § 898 (2000), provides: 

Any person subject to this chapter, who (1) is responsible 

for unnecessary delay in the disposition of any case of a 

person accused of an offense under this chapter; or (2) 

knowingly and intentionally fails to enforce or comply with 

any provision of this chapter regulating the proceedings 

before, during, or after trial of an accused; shall be 

punished as a court-martial may direct. 
United States v. Mizgala, No. 04-0382/AF 

8

subconstitutional speedy trial, Article 10 reigns preeminent 

over anything propounded by the President.”). 

The protections afforded confined or arrested 

servicemembers under Article 10 are distinct and greater given 

the nature of other speedy trial protections. See United States 

v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995) (listing sources for 

the right to a speedy trial in the military); United States v. 

Vogan, 35 M.J. 32, 33 (C.M.A. 1992) (also listing military 

speedy trial right sources). Rule for Courts-Martial 707(e) 

therefore does not act as a limitation on the rights afforded 

under Article 10. 

 Speedy Trial Act

 Courts have uniformly held that a guilty plea “constitutes 

a waiver of [an accused’s] rights under the [Speedy Trial] Act.” 

United States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004). 

While the Speedy Trial Act does not apply to offenses under the 

UCMJ,5

 there is a further distinction in the allocation of 

burdens under the two statutes. The Speedy Trial Act imposes 

the burden of proof upon an accused to support a motion to 

dismiss. 18 U.S.C. § 3162(a)(2)(2000). Under Article 10, the 

 

5

 18 U.S.C. § 3172 (2)(2000) (stating that “offense” as used in 

the Speedy Trial Act specifically excludes “an offense triable 

by court-martial”). 
United States v. Mizgala, No. 04-0382/AF 

9

Government has the burden to show that the prosecution moved 

forward with reasonable diligence in response to a motion to 

dismiss. United States v. Brown, 10 C.M.A. 498, 503, 28 C.M.R. 

64, 69 (1959). This distinction is additional proof of the 

importance of Article 10 to the incarcerated servicemember. 

We therefore find nothing in the comparisons to the Sixth 

Amendment, R.C.M. 707 or the Speedy Trial Act that would compel 

our application of their speedy trial waiver rules to Article 

10. It falls to this court then to determine whether an 

unconditional guilty plea waives a litigated Article 10 speedy 

trial motion. 

Article 10 Waiver Precedent 

Over the years our cases have taken different views as to 

how or whether the right to a speedy trial under Article 10 

could be waived. These divergent views have manifested 

themselves in cases involving forfeiture for failure to raise 

the issue at trial and as well as in cases considering waiver of 

the right due to an unconditional guilty plea. In an early case 

that considered Article 10 speedy trial rights, the court 

adopted the view that the right to a speedy trial could be 

forfeited for failing to raise the issue at trial: 

The right to a speedy trial is a personal 

right which can be waived. If the accused 

does not demand a trial or does not object 

to the continuance of a case at the 

prosecution's request or if he goes to trial 
United States v. Mizgala, No. 04-0382/AF 

10

without making any objection to the lapse of 

time between the initiation of the charges 

and the trial, he cannot complain of the 

delay after he has been convicted. 

Hounshell, 7 C.M.A. at 6, 21 C.M.R. at 133 (citation omitted). 

A short time later, however, Judge Quinn, the author judge in 

Hounshell, wrote with regard to speedy trial in another 

contested case that “[i]n the military, application of the rule 

of waiver, where the accused is confined, has little to 

recommend it.” Wilson, 10 C.M.A. at 341, 27 C.M.R. at 415. 

Similarly, our cases involving waiver and unconditional 

guilty pleas have vacillated. In United States v. Rehorn, 9 

C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958), the court 

stated, “It is a fundamental principle of Federal criminal law 

that a plea of guilty waives all defects which are neither 

jurisdictional nor a deprivation of due process of law.” 

Subsequently in United States v. Schalck the court held “that 

delay in preferring charges against the accused was not waived 

by his failure to raise the issue at trial and by his plea of 

guilty.” 14 C.M.A. at 375, 34 C.M.R. at 155. See also United 

States v. Goode, 17 C.M.A. 584, 587, 38 C.M.R. 382, 385 (1968) 

(finding that guilty plea does not deprive accused of protection 

afforded by Article 10); United States v. Cummings, 17 C.M.A. 

376, 381, 38 C.M.R. 174, 179 (1968)(finding that a waiver of the 

right to a speedy trial as part of a pretrial agreement is 
United States v. Mizgala, No. 04-0382/AF 

11

contrary to public policy); Tibbs, 15 C.M.A. at 353, 35 C.M.R. 

at 325 (reiterating that accused who pleads guilty does not lose 

protection accorded by Article 10). 

 A short time later, the court again changed direction on 

waiver in another case involving a guilty plea: “We answer in 

the affirmative the certified question . . . which asks whether 

‘. . . an accused who does not object at the time of trial to a 

delay in excess of three months in bringing him to trial will be 

precluded from raising the issue at the appellate level . . . 

.’” United States v. Sloan, 22 C.M.A. 587, 590, 48 C.M.R. 211, 

214 (1974) (citation omitted). Recently, in United States v. 

Birge, this court acknowledged the rule of waiver from Sloan but 

declined to address whether an Article 10 speedy trial claim was 

waived by a guilty plea under R.C.M. 707(e). 52 M.J. 209, 211-

12 (C.A.A.F. 1999). 

We take this opportunity to revisit our examination of 

whether an Article 10 claim is waived by an unconditional guilty 

plea or whether it may be reviewed by an appellate court in 

cases where the accused unsuccessfully raises an Article 10 

issue at trial and then enters an unconditional guilty plea.6

 In 

 

6

 The pivotal issue in this case involves the scope of the speedy 

trial right set forth in Article 10, UCMJ, and is an issue of 

statutory interpretation. Therefore, the discussion in the 

dissent regarding the application of the Bill of Rights to 

servicemembers is not pertinent to the present case. 
United States v. Mizgala, No. 04-0382/AF 

12

view of the legislative importance given to a speedy trial under 

the UCMJ and the unique nature of the protections of Article 10 

discussed above, we believe that where an accused unsuccessfully 

raises an Article 10 issue and thereafter pleads guilty, waiver 

does not apply. Such a rule for Article 10 rights properly 

reflects the importance of a servicemember’s right to a speedy 

trial under Article 10. Preservation of the right to appeal 

adverse Article 10 rulings is not only supported by the 

congressional intent behind Article 10, it also maintains the 

high standards of speedy disposition of charges against members 

of the armed forces and recognizes “military procedure as the 

exemplar of prompt action in bringing to trial those members of 

the armed forces charged with offenses.” United States v. 

Pierce, 19 C.M.A. 225, 227, 41 C.M.R. 225, 227 (1970). See also

United States v. Hatfield, 44 M.J. 22, 24 (C.A.A.F. 1996) 

(“[T]he mandate that the Government take immediate steps to try 

arrested or confined accused must ever be borne in mind.”). A 

fundamental, substantial, personal right -– a right that dates 

from our earlier cases7

 -- should not be diminished by applying 

ordinary rules of waiver and forfeiture associated with guilty 

pleas. 

 

7

United States v. Prater, 20 C.M.A. 339, 342, 43 C.M.R. 179, 182 

(1971); United States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74 

(1951). 
United States v. Mizgala, No. 04-0382/AF 

13

We therefore hold that a litigated speedy trial motion 

under Article 10 is not waived by a subsequent unconditional 

guilty plea. Thus, Mizgala’s unconditional guilty plea did not 

waive his right to contest the military judge’s denial of his 

Article 10 motion on appeal.8

Having concluded that Mizgala did not waive review of his 

Article 10 claim by entering an unconditional guilty plea, we 

proceed to the merits of that claim. 

ARTICLE 10 SPEEDY TRIAL 

The standard of diligence under which we review claims of a 

denial of speedy trial under Article 10 “is not constant motion, 

but reasonable diligence in bringing the charges to trial.” 

Tibbs, 15 C.M.A. at 353, 35 C.M.R. at 325. See also Kossman, 38 

M.J. at 262; United States v. Johnson, 1 M.J. 101 (C.M.A. 1975). 

Short periods of inactivity are not fatal to an otherwise active 

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.R. 81, 83 

(1961)). Further, although Sixth Amendment speedy trial 

standards cannot dictate whether there has been an Article 10 

violation, the factors from Barker v. Wingo are an apt 

 

8

 By virtue of our decision that Mizgala did not waive the 

Article 10 issue, it is not necessary to address his alternative 

claim of ineffective assistance of counsel. 
United States v. Mizgala, No. 04-0382/AF 

14

structure for examining the facts and circumstances surrounding 

an alleged Article 10 violation. Cooper, 58 M.J. at 61; Birge, 

52 M.J. at 212. 

We review the decision of whether an accused has received a 

speedy trial de novo as a legal question, giving substantial 

deference to a military judge’s findings of fact that will be 

reversed only if they are clearly erroneous. Cooper, 58 M.J. at 

57-59; United States v. Doty, 51 M.J. 464, 465 (C.A.A.F. 1999). 

Facts Relevant to the Speedy Trial Determination

The parties stipulated at trial to a chronology of events 

relating to the pretrial processing of this case. Additional 

information was provided by testimony from the deputy staff 

judge advocate and the former chief of military justice at 

Sheppard Air Force Base (AFB). Ultimately, the military judge 

made findings of fact in support of his ruling on the speedy 

trial motion. 

Mizgala was absent without leave (AWOL) on January 18 and 

19, 2001. Upon his return to military control, he confessed to 

using cocaine while absent. He went AWOL again on February 5, 

and remained absent until February 28. This second absence 

ended because Mizgala became involved in an off-base incident 

concerning an attempt to steal beer. Upon his return, he 

confessed that he used both cocaine and marijuana during this 

absence. 
United States v. Mizgala, No. 04-0382/AF 

15

Mizgala was placed in pretrial confinement on February 28 

and a pretrial confinement hearing was conducted three days 

later on March 3. The hearing officer determined that continued 

pretrial confinement was warranted because Mizgala was a flight 

risk and likely to engage in additional misconduct. 

On March 12, 2001, the Government received the results of a 

urinalysis on a sample given when Mizgala entered pretrial 

confinement. Those results indicated the presence of both 

cocaine and marijuana in Mizgala’s urine sample. At the end of 

March or early in April, the trial counsel prepared draft 

charges and forwarded them to the staff judge advocate. The 

draft charge sheet was returned to add a charge for the attempt 

to steal beer in the civilian community. Trial counsel then 

requested Security Forces to obtain the Wichita Falls Police 

Department report pertaining to this incident. 

Of importance in this case is that during the time that 

this case was processed, the legal office at Sheppard AFB was 

operating out of a temporary facility because a fire had 

destroyed their facility. On April 13, 2001, the office moved 

to a semipermanent facility. On April 16, 2001, Mizgala made a 

request for a speedy trial. The deputy staff judge advocate 

testified that because Mizgala was in pretrial confinement when 

he made his demand for speedy trial, his case was already in a 

priority status. 
United States v. Mizgala, No. 04-0382/AF 

16

The trial counsel requested the litigation packet 

pertaining to the pretrial confinement urinalysis from the 

laboratory at Brooks AFB, Texas, on April 23. On May 10, a 

police report pertaining to the attempted larceny of beer was 

received from the Wichita Falls Police Department. On May 14, 

seventy-five days after the initiation of pretrial confinement, 

charges were preferred against Mizgala. 

An investigating officer was appointed under Article 32, 

UCMJ, 10 U.S.C. § 832 (2000), on May 22. He conducted the 

investigation on May 24 and completed the report of 

investigation the following day. The completed Article 32 

investigation was forwarded to the defense on May 29. The 

record contains no indication that the defense made any 

objections or filed any comments on the report of investigation. 

In the interim, a memorandum indicating that Wichita Falls would 

not prosecute the attempted larceny of beer was received by the 

legal office. 

On June 5, the referral package and a related request for 

immunity were forwarded by the Sheppard AFB legal office to the 

staff judge advocate for the convening authority. The R.C.M. 
United States v. Mizgala, No. 04-0382/AF 

17

406 pretrial advice9

 was completed on June 20, and the case was 

referred to trial the following day. However, Mizgala was 

rapidly approaching the 120-day limit contained in R.C.M. 707 

and because the Government did not believe that he could be 

tried before then, they released him from pretrial confinement 

on June 21, 2001. The following day, Mizgala once again went 

AWOL.10 

 After considering the stipulated chronology of events, two 

witnesses, and arguments, the military judge denied the motion 

to dismiss for violation of Article 10. Although the military 

judge found “inefficiencies throughout this process,” he 

ultimately held: 

As such, at least as it applies to this 

case, I find that the government has 

exercised reasonable diligence insofar as it 

has complied with R.C.M. 707 and as that 

 

9

 Prior to referral of charges to a general court-martial, the 

staff judge advocate shall consider the charges and provide a 

written and signed advice to the convening authority. R.C.M. 

406(a), (b). That advice shall include the staff judge 

advocate’s: 

(1) Conclusion with respect to whether each specification 

alleges an offense under the code; 

(2) Conclusion with respect to whether the allegation of each 

specification is warranted by the evidence indicated in 

the report of investigation (is there is such a report); 

(3) Conclusion with respect to whether a court-martial would 

have jurisdiction over the accused and the offense; and 

(4) Recommendation of the action to be taken by the convening 

authority. 

R.C.M. 406(b). 

10 The period of delay from June 22 to the date of trial is not 

at issue in this appeal. 
United States v. Mizgala, No. 04-0382/AF 

18

equates to Article 10 in this particular 

circumstance. I do not believe that the 

inefficiencies mentioned equate to 

negligence that’s outlined in Kossman, and I 

believe that is a standard that effectively 

would have to amount to gross negligence. 

And I find that by a preponderance of the 

evidence. 

When he later announced additional findings, the military judge 

adhered to his speedy trial ruling and reiterated that “I must 

essentially equate the R.C.M. standard with an Article 10 

violation.” He further stated that gross negligence was 

required to support an Article 10 violation. Also, while the 

military judge’s ruling did reflect some consideration of the 

Barker factors, it did so in a manner that indicated that the 

military judge limited his consideration to a Sixth Amendment 

speedy trial analysis. 

DISCUSSION 

We agree with the Court of Criminal Appeals that the 

military judge plainly erred in the manner in which he reviewed 

Mizgala’s Article 10 motion. His ruling was erroneous as a 

matter of law in three regards. First, Article 10 and R.C.M. 

707 are distinct, each providing its own speedy trial 

protection. The fact that a prosecution meets the 120-day rule 

of R.C.M. 707 does not directly “or indirectly” demonstrate that 

the Government moved to trial with reasonable diligence as 
United States v. Mizgala, No. 04-0382/AF 

19

required by Article 10. See United States v. Edmond, 41 M.J. 

419, 421 (C.A.A.F. 1995); Kossman, 38 M.J. at 260-61. 

Second, the military judge erred in determining that he was 

required to find gross negligence to support an Article 10 

violation in the absence of Government spite or bad faith. An 

Article 10 violation rests in the failure of the Government to 

proceed with reasonable diligence. A conclusion of unreasonable 

diligence may arise from a number of different causes and need 

not rise to the level of gross neglect to support a violation. 

Kossman, 38 M.J. at 261. Finally, the military judge erred by 

limiting his consideration of the Barker v. Wingo factors to a 

Sixth Amendment speedy trial analysis. We have held that “it is 

‘appropriate’ to consider those factors ‘in determining whether 

a particular set of circumstances violates a servicemember’s 

speedy trial rights under Article 10.’” Cooper, 58 M.J. at 61 

(quoting Birge, 52 M.J. at 212). 

Turning to the substance of Mizgala’s claim, our framework 

to determine whether the Government proceeded with reasonable 

diligence includes balancing the following 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. See Barker, 407 U.S. at 530. See

also Birge, 52 M.J. at 212. Applying those factors to Mizgala’s 

case, we remain mindful that we are looking at the proceeding as 
United States v. Mizgala, No. 04-0382/AF 

20

a whole and not mere speed: “[T]he essential ingredient is 

orderly expedition and not mere speed.” United States v. Mason, 

21 C.M.A. 389, 393, 45 C.M.R. 163, 167 (C.M.A. 1972) (quoting 

Smith v. United States, 369 U.S. 1, 10 (1959)). 

The processing of this case is not stellar. We share the 

military judge’s concern with several periods during which the 

Government seems to have been in a waiting posture: waiting for 

formal evidence prior to preferring charges and waiting for a 

release of jurisdiction for an offense that occurred in the 

civilian community. There are periods evidencing delay in 

seeking evidence of the off-post offense and seeking litigation 

packages to support prosecution of the drug offenses. 

Nevertheless, constant motion is not the standard so long as the 

processing reflects reasonable diligence under all the 

circumstances. Our evaluation must balance the delay against 

the reasons for these periods of delay (such as the need to 

investigate offenses and obtain evidence), with the need to 

coordinate investigation and jurisdiction with civilian 

authorities. Once these necessary steps were completed, the 

Government moved expeditiously to refer the charges. 

As to the consideration of possible prejudice, we find no 

material prejudice to Mizgala’s substantial rights. In this 

regard, we note the test for prejudice set forth by the Supreme 

Court: 
United States v. Mizgala, No. 04-0382/AF 

21

Prejudice, of course, should be assessed in 

the light of the interests of defendants 

which the 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 

(iii) to limit the possibility that the 

defense will be impaired. Of these, the most 

serious is the last, 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). Mizgala experienced 

117 days of pretrial confinement, which necessarily involves 

some anxiety and stress, but there is no evidence in the record 

that the conditions of that confinement were harsh or 

oppressive. Finally, there is no indication that his 

preparation for trial, defense evidence, trial strategy, or 

ability to present witnesses, on both the merits and sentencing, 

were compromised by the processing time in this case. Balancing 

those factors identified by the Supreme Court, we find that 

prejudice, if any, was minimal. 

We hold that Mizgala was not denied his Article 10 right to 

a speedy trial and, after our de novo review of the speedy trial 

issue, we find there was no prejudice from the military judge’s 

application of an erroneous standard of law. 

DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed. 
United States v. Mizgala, No. 04-0382/AF 

 CRAWFORD, Judge (dissenting in part and concurring in the 

result): 

 While the majority notes that Article 10, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 810 (2000), is a “more 

exacting” right, it overlooks the history behind the UCMJ 

provisions of the Manual for Courts-Martial, United States (2002 

ed.)(MCM), and mainstream jurisprudence in this area. Thus, I 

respectfully dissent from the majority opinion that an 

unconditional plea of guilty does not waive Appellant’s rights 

to a speedy trial whether asserted under the Sixth Amendment, 

the UCMJ, or the MCM. The congressional history underlying 

Article 10 has not altered what a majority of the courts have 

held concerning unconditional guilty pleas. 

 History Behind the UCMJ. When Congress passed the UCMJ in 

1950, there was some question as to the applicability of the 

Bill of Rights to members of the Armed Forces. Fifty-five years 

later, the Supreme Court still has never expressly held that the 

Bill of Rights applies to servicemembers. In United States ex 

rel. Innes v. Crystal, 131 F.2d 576, 577 n.2 (2d Cir. 1943)

(citing Ex parte Quirin, 317 U.S. 1 (1942)), the court stated, 

“The Fifth and Sixth Amendments are, of course, inapplicable to 

courts-martial.” This question about the application of the 
United States v. Mizgala, No. 04-0382/AF 

2

Bill of Rights to the military resulted in Congress passing 

Articles 10, 27,1 31,2 44,3 46,4 and 63,5 UCMJ. 

 Early in the Court’s history, when examining the question 

of speedy trial, it “bottom[ed] those [constitutional] rights 

and privileges” on the Due Process Clause of the Fourteenth 

Amendment rather than on the specific provisions in the Bill of 

Rights. United States v. Clay, 1 C.M.A. 74, 77, 1 C.M.R. 74, 77 

(1951). In one of our earlier cases, United States v. 

Hounshell, this Court stated, “[t]he United States Constitution 

guarantees to a person protected under federal law ‘the right to 

speedy and public trial.’ Article 10 of the Uniform Code . . . 

reiterates that guarantee . . . .” 7 C.M.A. 3, 6, 21 C.M.R. 

129, 132 (1956)(quoting U.S. Const. amend. VI). Indeed, the 

legislative history behind Article 10 strongly suggests it was 

intended only to remedy delays concerning pretrial restraint. 

See Uniform Code of Military Justice: Hearings on H.R. 2498 

Before a Subcomm. of the House Comm. on Armed Services, 81st 

Cong. 905-12 (1949)[hereinafter UCMJ Hearings]. That 

subcommittee viewed Article 10 solely as a tool to terminate 

lengthy pretrial confinement. Id. 

 

1

 10 U.S.C. § 827 (2000). 

2

 10 U.S.C. § 831 (2000). 

3

 10 U.S.C. § 844 (2000). 

4

 10 U.S.C. § 846 (2000). 

5

 10 U.S.C. § 863 (2000). 
United States v. Mizgala, No. 04-0382/AF 

3

 The right to counsel guaranteed under Article 27 was not 

applicable through the Bill of Rights to state proceedings until 

1963. It was not until that year, in Gideon v. Wainwright, 372 

U.S. 335 (1963), that the Supreme Court extended the right to 

appointment of counsel in state cases to all indigent felony 

defendants. Prior to that, Congress had ensured some right to 

counsel for military members by passing Article 27, but that 

right was limited to general courts-martial. Congress extended 

this right to special courts-martial in 1968. Of course, it is 

not enough to have counsel; counsel must zealously represent the 

accused, starting with a full investigation of the case. See, 

e.g., House v. Balkcom, 725 F.2d 608 (11th Cir. 1984). The 

right to counsel is one of the most valuable rights that a 

defendant possesses, but certain decisions are for the defendant 

to control while the remainder are left with counsel. The 

Supreme Court has recognized that counsel has the authority to 

manage most aspects of the defense without obtaining the 

defendant’s approval. See, e.g., Nixon v. Florida, 125 S. Ct. 

551 (2004). In New York v. Hill, the Supreme Court stated: 

“[D]efense counsel’s agreement to a trial date outside the time 

period required by [the Interstate Agreement on Detainers] bars 

the defendant from seeking dismissal because trial did not occur 

within that period.” 528 U.S. 110, 111 (2000). Moreover, the 

Hill Court said, “only counsel is in a position to assess the 
United States v. Mizgala, No. 04-0382/AF 

4

benefit or detriment of the delay to the defendant’s case,” Id.

at 115, and “only counsel is in a position to assess whether the 

defense would even be prepared to proceed any earlier.” Id.

Feeling that the self-incrimination clause did not apply to 

military members, Congress enacted Article 31 to protect the 

right against self-incrimination in the military setting. 

Additionally, in enacting Article 31(b), Congress was concerned 

that the interrogation environment in the military and the 

interplay between military relationships and following orders 

deserved protection. See UCMJ Hearings at 984-85. As this 

Court stated, “[u]ndoubtedly it was the intent of Congress in 

this division of the Article to secure to persons subject to the 

Code the same rights secured to those of the civilian community 

under the Fifth Amendment to the Constitution of the United 

States -- no more and no less.” United States v. Eggers, 3 

C.M.A. 191, 195, 11 C.M.R. 191, 195 (1953). In his testimony on 

the UCMJ, Mr. Felix Larkin, Assistant General Counsel in the 

Office of the Secretary of Defense, expressed the desire to 

“retain the constitutional protections against selfincrimination.” UCMJ Hearings at 988. The UCMJ was enacted to 

ensure those constitutional rights because of the deep division 

as to the applicability of those rights in different factual 

scenarios. The commentary to Article 31(a) also underscores the 

intent to “extend [the] privilege against self-incrimination to 
United States v. Mizgala, No. 04-0382/AF 

5

all persons under all circumstances.” H.R. Rep. 81-491 at 19 

(1949). 

 Likewise, Congress enacted Article 44 because “the 

application of [the Fifth Amendment] is in doubt . . . . The 

matter could be clarified by extending the protection of the 

fifth amendment rather than granting protection by means of 

different or new statutory enactment.” Uniform Code of Military 

Justice: Hearings on § 857 and H.R. 4080 Before a Subcomm. of 

the Senate Comm. on Armed Services, 81st Cong. 111 (1949) 

(statement of Sen. Pat McCarran, Chairman, Senate Judiciary 

Comm.). House commentary on the UCMJ observed: “The question 

is whether the constitutional provision of jeopardy follows a 

person who enters military service.” H.R. Rep. 81-491 at 23. 

 As to the double jeopardy provision, this Court reiterated 

the theme that the Constitution did not apply, stating, “The 

constitutional privilege against former jeopardy, applicable to 

the civilian community, is granted to offenders against military 

law by Article 44 . . . .” United States v. Ivory, 9 C.M.A. 

516, 519-20, 26 C.M.R. 296, 299-300 (1958). 

 In the past, this Court applied a due process examination 

before it had announced that the Bill of Rights applies “except 

those [rights] which are expressly or by necessary implication 

inapplicable.” United States v. Jacoby, 11 C.M.A. 428, 430-31, 

29 C.M.R. 244, 246-47 (1960). Because the Supreme Court has not 
United States v. Mizgala, No. 04-0382/AF 

6

held that the Bill of Rights applies to servicemembers, our 

Court, in its early years, did not rely upon speedy trial 

rights. 

 The question of the application of the Fourth Amendment as 

to the right to privacy,6

 the self-incrimination clause of the 

Fifth Amendment,7 speedy trial,8 or the right of confrontation 

cross-examination under the Sixth Amendment9

 is moot based on 

congressional and presidential actions. 

 MCM Provision. The majority also overlooks R.C.M. 707(e), 

which states that: “Except as provided in R.C.M. 910(a)(2) 

[conditional pleas], a plea of guilty which results in a finding 

of guilty waives any speedy trial issue as to that offense.” 

(Emphasis added.) This provision by the President does not 

violate any constitutional provision -- there is certainly none 

prohibiting this waiver, and many federal courts provide for 

such a waiver. 

 Because the majority overlooks mainstream jurisprudence and 

the MCM provisions, I respectfully dissent. 

 

 

6

 Military Rule of Evidence (M.R.E.) 311-317. 

7

 Article 31, UCMJ; M.R.E. 301-306. 

8

 Article 10, 33; R.C.M. 707. 

9

 Article 46, UCMJ; R.C.M. 702, 703; M.R.E. 611.