UNITED STATES, Appellee 

v. 

Steven A. DANYLO II, Airman Basic 

U.S. Air Force, Appellant 

No. 13-0570 

Crim. App. No. 37916 

United States Court of Appeals for the Armed Forces

Argued December 16, 2013 

Decided March 24, 2014 

STUCKY, J., delivered the opinion of the Court, in which RYAN 

and OHLSON, JJ., joined. BAKER, C.J., filed a separate 

dissenting opinion, in which ERDMANN, J., joined. 

Counsel

For Appellant: Major Anthony D. Ortiz (argued). 

For Appellee: Lieutenant Colonel C. Taylor Smith (argued); 

Colonel Don M. Christensen, Major Terence S. Dougherty, and 

Gerald R. Bruce, Esq. (on brief); Major Daniel J. Breen. 

Military Judge: Matthew D. Van Dalen 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 

 
United States v. Danylo, No. 13-0570/AF 

2 

Judge STUCKY delivered the opinion of the Court. 

 Appellant was in pretrial confinement for nearly a year 

before he was convicted of various drug crimes and assault. We 

granted review to determine whether he was denied his Sixth 

Amendment right to a speedy trial when his court-martial 

commenced about 350 days after he entered pretrial confinement, 

and whether the military judge erred when he focused only on a 

portion of the delay in his speedy trial analysis after the 

appellate court had already ruled on the other portion. We hold 

that the delay does not rise to the level of a Sixth Amendment 

violation in this case, and that the military judge below did 

not err in his speedy trial analysis. We therefore affirm the 

judgment of the United States Air Force Court of Criminal 

Appeals (CCA). 

I. Background 

Pursuant to his pleas, Appellant was convicted of one 

specification each of using marijuana, distributing marijuana, 

using cocaine, distributing cocaine, introducing marijuana onto 

base, and assault, in violation of Articles 112a and 128, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 928 

(2012). Appellant’s speedy trial issues arose from the 

Government’s slow prosecution of his case, even though he pled 

guilty and was in pretrial confinement, and the slow review of 

the Government’s appeal by the CCA. 
United States v. Danylo, No. 13-0570/AF 

3 

Appellant tested positive for drugs and was interrogated 

about the results of the drug test on March 26, 2010. He was 

restricted to base on April 9, and further restricted a day 

later, with base liberties restricted and an escort required 

outside of the dormitory. After being further restricted, 

Appellant assaulted another airman, and on April 16, he was 

placed in pretrial confinement. A few weeks after that, on May 

3, he demanded a speedy trial for the first time. 

Throughout June and July 2010, the Government prosecuted 

his case by preferring charges, holding a hearing pursuant to 

Article 32, UCMJ, 10 U.S.C. § 832 (2012), and referring charges 

to court-martial. On August 6, the convening authority signed a 

pretrial agreement in which Appellant agreed to plead guilty to 

most charges. The pretrial agreement preserved the speedy trial 

issue for appeal. 

On August 10, 2010, 123 days after being restricted to base 

and 116 days after being placed in pretrial confinement,1

 the 

military judge dismissed all charges against Appellant with 

prejudice due to a speedy trial violation. The Government 

appealed to the CCA on September 20, 2010, and 170 days later, 

 

1

 These time periods are miscalculated in the record as 121 days 

and 115 days, respectively. In calculating the number of days 

elapsed for a speedy trial claim, “do not count the first day, 

but count the last day.” United States v. Vogan, 35 M.J. 32, 34 

n.* (C.M.A. 1992) (citing Rule for Courts-Martial (R.C.M.) 

707(b)(1)). 
United States v. Danylo, No. 13-0570/AF 

4 

the CCA granted the Government’s appeal. United States v. 

Danylo, Misc. Dkt. No. 2010-15, slip op. at 14 (A.F. Ct. Crim. 

App. Mar. 9, 2011) (order setting aside dismissal by military 

judge and remanding for further proceedings) (unpublished). 

This 170-day delay at the CCA occurred despite multiple motions 

from both Appellant and the Government requesting expedited 

review, and despite the statutory priority given Article 62 

appeals. Article 62(b), UCMJ, 10 U.S.C. § 862(b) (2012) (“An 

appeal under this section . . . shall, whenever practicable, 

have priority over all other proceedings before [the CCA].”). 

This Court denied a petition for review of that CCA decision 

without prejudice. United States v. Danylo, 70 M.J. 217 

(C.A.A.F. 2011) (denying petition). 

Appellant’s court-martial resumed on March 31, 2011. He 

argued again the speedy trial issue, which this time the 

military judge denied. Pursuant to conditional pleas and a new 

pretrial agreement limiting confinement to time served, which 

now totaled 349 days, Appellant was convicted and sentenced to a 

bad-conduct discharge and confinement for ten months. The 

convening authority, recognizing that the term of confinement 

had already been served, approved the sentence as adjudged on 

April 22, 2011. Two years later, the CCA affirmed. United 

States v. Danylo, No. ACM 37916, 2013 CCA LEXIS 334, 2013 WL 

1911222 (A.F. Ct. Crim. App. Apr. 17, 2013) (unpublished). 
United States v. Danylo, No. 13-0570/AF 

5 

II. Discussion 

We review de novo Sixth Amendment speedy trial issues. 

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

analyzing an appellant’s speedy trial right, we “giv[e] 

substantial deference to the military judge’s findings of fact 

unless they are clearly erroneous.” United States v. Thompson, 

68 M.J. 308, 312 (C.A.A.F. 2010). 

A. Appellant’s Speedy Trial Claim 

“In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial . . . .” U.S. Const. amend 

VI. In the military, Sixth Amendment speedy trial protections 

are triggered upon preferral of charges or the imposition of 

pretrial restraint. See Vogan, 35 M.J. at 33. In addition to 

the Sixth Amendment, the UCMJ and the R.C.M. afford an accused a 

right to a speedy trial. Under Article 10, UCMJ, 10 U.S.C. 

§ 810 (2012), once an appellant is placed in pretrial 

confinement the Government is required to exercise “reasonable 

diligence” in bringing the accused to trial. United States v. 

Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation 

marks omitted). Specifically, R.C.M. 707(a) provides that 

“[t]he accused shall be brought to trial within 120 days” of the 

imposition of restraint. At Appellant’s first trial in 2010, 

the military judge found a speedy trial violation under Article 

10 and R.C.M. 707, but not the Sixth Amendment. Appellant 
United States v. Danylo, No. 13-0570/AF 

6 

presently claims a violation of his Sixth Amendment speedy trial 

right. Appellant does not make an R.C.M. 707 claim before this 

Court, and although he argued for an Article 10 violation in his 

brief before this Court, the only assigned issue in his 

petition, and the issue this Court granted, was the Sixth 

Amendment issue. 

In determining whether an appellant has been denied his 

right to a speedy trial under the Sixth Amendment, this Court 

considers the following 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.” 

United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) 

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 

1. Length of the Delay 

“[U]nless the delay is facially unreasonable, the full due 

process analysis will not be triggered.” United States v. 

Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013) (internal quotation 

marks and citation omitted). Appellant was in pretrial 

confinement for 349 days until his court-martial occurred. This 

exceeds periods of pretrial confinement that we have previously 

found to trigger full speedy trial analysis. See Thompson, 68 

M.J. at 312 (145 days); United States v. Cossio, 64 M.J. 254, 

257 (C.A.A.F. 2007) (117 days). The Government concedes that 

this factor weighs in Appellant’s favor. 
United States v. Danylo, No. 13-0570/AF 

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2. Reasons for the Delay 

Two main periods of time account for the 349-day delay. 

First, it took the Government 116 days to bring Appellant to 

trial after he entered pretrial confinement. Second, the 

Article 62 appeal took 170 days, while Appellant remained in 

confinement. 

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. 

Under the Sixth Amendment speedy trial right, the Supreme 

Court has indicated that such a prosecution strategy is 

reasonable. See United States v. Ewell, 383 U.S. 116, 120 

(1966) (noting that prosecution procedures “are designed to move 

at a deliberate pace,” and finding no Sixth Amendment speedy 

trial violation in a nineteen-month pretrial delay); see also

United States v. Grom, 21 M.J. 53, 57 (C.M.A. 1985) (noting that 

“[i]n Barker, most of the five-year delay between arrest and 
United States v. Danylo, No. 13-0570/AF 

8 

trial was due to the prosecution’s efforts to obtain a 

conviction” through the testimony of Barker’s co-actor). In 

Grom, the appellant raised a speedy trial issue under both 

Article 10, UCMJ, and the Sixth Amendment. Id. at 54. Without 

distinguishing between the two, our predecessor court found 

nothing improper in an eight-month delay due to the 

prosecution’s strategy, even though “the charges finally 

referred to trial were based on evidence available at the time 

of the arrest.” Id. at 57. While the appellant in Grom was not 

in pretrial confinement, he was somewhat restricted because he 

had been involuntarily retained in military service beyond his 

normal date of separation from active duty pending his trial. 

See id. at 55; Barker, 407 U.S. at 533 (“[E]ven if an accused is 

not incarcerated prior to trial, he is still disadvantaged by 

restraints on his liberty.”). 

In the present case, the Government provided substantial 

justification for the time it took for its prosecution strategy, 

including the process of obtaining immunity for its witnesses. 

And as the CCA noted, the Government took this time to 

investigate the case, convene a pretrial confinement review 

hearing, prepare and obtain approval for the charges, and hold 

an Article 32 hearing. Danylo, Misc. Dkt. No. 2010-15, slip op. 

at 5. The prosecution in this case was therefore reasonable 

under the Sixth Amendment. 
United States v. Danylo, No. 13-0570/AF 

9 

The other main source of delay -- the CCA’s delay on the 

Article 62 appeal -- is unexplained. “[T]imely management and 

disposition of cases docketed at the Courts of Criminal Appeals 

is a responsibility of the Courts of Criminal Appeals.” United 

States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006). Article 

62(b), UCMJ, requires that an appeal by the government “shall, 

whenever practicable, have priority over all other proceedings 

before that court.”2 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. 

See Danylo, Misc. Dkt. No. 2010-15, at 5 n.3. 

Despite our significant concern about the processing time 

at the lower court, we are reluctant to pierce the veil of the 

 

2

 Article 62(c), UCMJ, provides that delays resulting from an 

appeal under Article 62 “shall be excluded” from speedy trial 

analysis “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.” 

10 U.S.C. § 862(c) (2012). The Supreme Court “give[s] Congress 

the highest deference in ordering military affairs” under its 

constitutional mandate “[t]o make Rules for the Government and 

Regulation of the land and naval Forces.” Loving v. United 

States, 517 U.S. 748, 759, 768 (1996) (citing U.S. Const. art. 

I, § 8, cl. 14). Nevertheless, Article 62(c) does not totally 

immunize the Courts of Criminal Appeals against judicial review 

of the timeliness of their decisions. 
United States v. Danylo, No. 13-0570/AF 

10 

CCA’s decision-making process and attempt to regulate the dayto-day mechanics of the legal process assigned to the court. 

See Moreno, 63 M.J. at 137 (noting that we apply “a more 

flexible review” of the CCA’s review period, “recognizing that 

it involves the exercise of [their] judicial decision-making 

authority”). Here, fewer than six months elapsed between the 

Government’s notice of appeal and the CCA’s decision. See id.

at 137-38 (“We find that a period of slightly over six months is 

not an unreasonable time for review by the Court of Criminal 

Appeals.”); Danylo, Misc. Dkt. No. 2010-15, slip op. at 14. 

Because the Article 62 appellate process continued deliberately, 

though slowly, this delay is “more neutral.” United States v. 

Wilson, 72 M.J. 347, 352 (C.A.A.F. 2013) (quoting Barker, 407 

U.S. at 531) (internal quotation marks omitted). 

3. Assertion of the Speedy Trial Right 

As the Government conceded, “[t]here is no dispute that 

Appellant demanded a speedy trial and requested release from 

pretrial confinement.” He made several requests for a speedy 

trial throughout the course of his appeal beginning on May 3, 

2010. Additionally, the Government moved for expedited 

consideration multiple times. This factor weighs strongly in 

Appellant’s favor. 
United States v. Danylo, No. 13-0570/AF 

11 

4. Prejudice

Appellant served two months of confinement beyond his 

adjudged sentence. But in four decisions, no military judge or 

court of appeals has found significant prejudice in Appellant’s 

case. We also decline to do so. 

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.” Moreno, 63 M.J. at 138–39. 

“Of these forms of prejudice, ‘the most serious is the last, 

because the inability of a defendant adequately to prepare his 

case skews the fairness of the entire system.’” Doggett v. 

United States, 505 U.S. 647, 654 (1992) (quoting Barker, 407 

U.S. at 532). While the first interest weighs in Appellant’s 

favor, the second and third weigh against him. 

First, Appellant was subjected to pretrial confinement for 

nearly a year, two months longer than his adjudged sentence. 

The military judge credited Appellant with the pretrial 

confinement he served against his adjudged sentence, and 

Appellant was entitled to be released immediately following the 

conclusion of his court-martial. Appellant did not receive 
United States v. Danylo, No. 13-0570/AF 

12 

credit for the two months’ confinement he served beyond the tenmonth sentence, though, because he waived the issue. In his 

pretrial agreement, he agreed to waive all waivable motions, 

including motions pursuant to Article 13, UCMJ, 10 U.S.C. § 913 

(2012) (limiting pretrial confinement). See United States v. 

McCants, 39 M.J. 91, 93 (C.M.A. 1994) (“Failure to make a motion 

for appropriate relief [for pretrial-confinement credit at 

trial] constitutes waiver.”) (citing R.C.M. 905(e)). Appellant 

made no such motion in this case; even had he done so, the issue 

was waived in his pretrial agreement. 

Moreover, we have never held that pretrial confinement 

which exceeds an adjudged sentence is per se prejudicial. See

Bell v. Wolfish, 441 U.S. 520, 539 (1979) (holding that, when 

“reasonably related to a legitimate governmental objective,” 

pretrial detention is not “punishment”) (internal quotation 

marks omitted). The Barker Court held that ten months of 

pretrial confinement -- nearly as long as the case before us -- 

was not prejudicial where there was no adverse impact on the 

defendant’s ability to present a defense. Barker, 407 U.S. at 

534. 

Second, Appellant argues that the confinement conditions 

caused him particularized anxiety and concern. While the 

military judge found that Appellant’s confinement “almost 

certainly caused anxiety, stress, and the loss of ability to 
United States v. Danylo, No. 13-0570/AF 

13 

carry on a normal lifestyle,” the confinement conditions were 

not unique to his case, and the CCA noted that some of his 

anxiety can be attributed to his own misconduct while in 

pretrial confinement. Danylo, 2013 CCA LEXIS 334, at *10, 2013 

WL 1911222, at *3; Brief for Appellee at 27, United States v. 

Danylo, No. 13-0570 (C.A.A.F. Nov. 13, 2013) (noting that, “[i]n 

less than a year, Appellant ran afoul of [confinement] rules and 

regulations 145 times”). 

Appellant does not argue any basis for weighing the third 

interest in his favor, and the record does not show one. There 

is no indication of any loss of evidence or impact to case 

preparation due to the delay. See Doggett, 505 U.S. at 654. 

Appellant has not shown sufficient prejudice for a Sixth 

Amendment violation. While the Barker/Moreno factors of the 

length of the delay and the assertion of the speedy trial right 

weigh in Appellant’s favor, the reasons for the delay are 

prosecution strategy, which was reasonable, and slow but 

deliberate appellate review. While Appellant served two months 

of confinement in excess of what was actually adjudged, he has 

not demonstrated prejudice that rises to the level of a Sixth 

Amendment violation. See Reed v. Farley, 512 U.S. 339, 353 

(1994) (“A showing of prejudice is required to establish a 

violation of the Sixth Amendment Speedy Trial Clause, and that 

necessary ingredient is entirely missing here.”). Thus, 
United States v. Danylo, No. 13-0570/AF 

14 

Appellant’s Sixth Amendment speedy trial rights were not 

violated. 

Further, given the facts of this case, granting the remedy 

Appellant requests -- dismissal with prejudice -- would be 

disproportionate to any prejudice he did suffer. Any prejudice 

Appellant suffered does not rise to the level of a Sixth 

Amendment violation, so he is not entitled to such a windfall. 

While we find no Sixth Amendment violations on the facts of 

this case, the lengthy delay in resolving the Article 62 appeal 

is quite troublesome. The responsibility for timely decision 

making at the Courts of Criminal Appeals lies with those courts 

themselves. Moreno, 63 M.J. at 137. However, the 

responsibility for providing the necessary resources for the 

proper functioning of the appellate system, including the Courts 

of Criminal Appeals, lies with the Judge Advocates General, who 

are required by Congress to establish those courts and, within 

the boundaries of judicial independence, to supervise them. 

Articles 6(a), 66(a), UCMJ, 10 U.S.C. §§ 806(a), 866(a) (2012); 

Moreno, 63 M.J. at 137; Diaz v. J. Advocate Gen. of the Navy, 59 

M.J. 34, 40 (C.A.A.F. 2003). We expect all concerned with these 

matters to exercise the necessary “institutional vigilance” to 

ensure timely action on appeals, particularly those required by 

statute to be expedited. See Diaz, 59 M.J. at 39–40. 
United States v. Danylo, No. 13-0570/AF 

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B. The Military Judge’s Speedy Trial Analysis 

Appellant also argues that the military judge erred in his 

second trial by only considering the period of time consumed by 

the Article 62 appeal in evaluating the second motion to 

dismiss. The military judge’s findings of fact covered the 

entire period of delay from March 2010 through March 2011, but 

he “focus[ed] only upon the delays incurred after the Article 

62(a) appeal was brought by the government.” The military judge 

said he did so because (1) the CCA had already considered and 

ruled on the delay preceding the Article 62 appeal “so this 

point is moot”; and (2) the Government’s failure to prosecute 

“should not be imputed upon or held against the AFCCA.” The CCA 

found that the military judge’s ruling was not clearly 

erroneous, because the military judge had considered the entire 

period of pretrial confinement even though his focus was on the 

appellate review period. Danylo, 2013 CCA LEXIS 334, at *5–*6, 

2013 WL 1911222, at *2. 

Analysis of a Sixth Amendment speedy trial claim requires 

consideration of the entire period of delay from arrest 

(pretrial confinement) or preferral of charges until 

commencement of trial on the merits. United States v. 

MacDonald, 456 U.S. 1, 6–8 (1982). “That review spans a 

continuum of process from review by the convening authority 

under Article 60 . . . to review by a Court of Criminal Appeals 
United States v. Danylo, No. 13-0570/AF 

16 

under Article 66 . . . to review, in appropriate cases, by this 

Court under Article 67.” Diaz, 59 M.J. at 37. 

The military judge did consider the full period of 

Appellant’s case since his positive drug test. In doing so, the 

military judge essentially applied to the first segment of 

processing time the “law of the case” doctrine, which states 

that a trial court is bound by the ruling of a higher appellate 

court remanding the case. United States v. Morris, 49 M.J. 227, 

230 (C.A.A.F. 1998). Thus, the military judge had to focus on 

the period of delay unaddressed by the CCA, since the CCA had 

already decided that there was no speedy trial issue in the preappeal delay. 

Appellant argues that the military judge should have 

considered the period of delay as one continuum, but this is 

contrary to the reasoning of our case law. 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. See, e.g., Wilson, 72 M.J. at 352 

(adopting the military judge’s separation of the pretrial delay 

into distinct time periods requiring individual analysis); 

Moreno, 63 M.J. at 136 (holding that in the post-trial context, 

each time period is reviewed individually “because the reasons 

for the delay may be different at each stage and different 

parties are responsible for the timely completion of each 
United States v. Danylo, No. 13-0570/AF 

17 

segment”). 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. 

III. Judgment 

The judgment of the United States Air Force Court of 

Criminal Appeals is affirmed. 
United States v. Danylo, No. 13-0570/AF 

BAKER, Chief Judge, with whom ERDMANN, Judge, joins 

(dissenting): 

 I would reverse this case. In my view, all four Barker v. 

Wingo factors favor Appellant. Barker v. Wingo, 407 U.S. 514, 

530 (1972). The second and fourth factors do not weigh heavily 

in his favor, but they weigh in his favor nonetheless. Thus, if 

Barker v. Wingo is the test for a Sixth Amendment speedy trial 

claim, and all four factors weigh in favor of Appellant, I do 

not see how or why he should not prevail on the underlying Sixth 

Amendment claim. Therefore, I respectfully dissent. 

Discussion 

 The Court agrees that Barker v. Wingo provides the analytic 

framework for addressing Appellant’s speedy trial claim. Barker

invites consideration of four factors with no one factor being 

dispositive: (1) the length of delay; (2) the reasons for the 

delay; (3) whether the appellant made a demand for a speedy 

trial; and, (4) prejudice to the appellant. Barker, 407 U.S. at 

530, 533. The factors are related and “must be considered 

together with such other circumstances as may be relevant. . . . 

[C]ourts must still engage in a difficult and sensitive 

balancing process.” Id. at 533. The Court further agrees that 

as provided in Article 62(b), Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 862(b) (2012), an Article 62, UCMJ, appeal, 

such as this one, “shall, whenever practicable, have priority 
United States v. Danylo, No. 13-0570/AF 

2 

over all other proceedings before [the Court of Criminal Appeals 

(CCA)].” “Priority” and “practicable” are not statutorily 

defined, but surely their plain English meaning is clear -– the 

case is supposed to move to the front of the line if feasible. 

Where the Court divides is on consideration of the second 

and fourth factors. First, I disagree on the extent to which 

the second Barker factor -– the reasons for delay -- weighs 

against Appellant. The majority concludes that this factor is 

“more neutral.” United States v. Danylo, 73 M.J. __, __ (10) 

(C.A.A.F. 2014) (internal quotation marks and citations 

omitted). It reaches this conclusion based on the determination 

that the other “main source of delay -- the CCA’s delay on the 

Article 62 appeal -- is unexplained.” Id. at __ (9). According 

to the majority, the delay is unexplained, because “[d]espite 

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.” Id. at 

__ (9-10). I share this underlying concern, as first expressed 

in United States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006). 

However, this Court need not pierce the deliberative veil 

of the CCA or, for that matter, Monday morning quarterback the 

day-to-day mechanics of the CCA, to see how this factor weighs 

in Appellant’s favor. One need only look to the military 
United States v. Danylo, No. 13-0570/AF 

3 

judge’s findings of fact.1 These findings of fact include the 

following: 

 The CCA granted the Government’s Article 62, UCMJ, appeal 

“170 days after the Government originally filed its Article 

62 appeal and 191 days after docketing with the CCA.” 

 “108 cases were decided by the AFCCA between the submission 

of the Article 62 appeal (20 September 2010) and 9 March 

2011.” 

 “Three of those cases were Article 62(a) appeals and 65 

were merits cases.” This was also the only case “in which 

the accused was in pretrial confinement.” 

 “[S]ince the summer of 2010, the AFCCA has had four 

unfilled positions for appellate court judges (out of 9) 

and one unmanned position for a law clerk (out of 2).” 

 Appellant and Government each moved for expedited 

processing three times while the case was pending at the 

CCA. 

 On October 16, 2010, the Government “requested oral 

argument.” But the CCA did not respond until January 14, 

2011, when it ordered oral argument for January 20, 2011. 

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 

                                                           

1

 As the majority notes, “we give substantial deference to the 

military judge’s findings of fact unless they are clearly 

erroneous.” Danylo, 73 M.J. at __ (5) (internal quotation 

marks, brackets, and citation omitted). The majority has not 

concluded that any of the military judge’s findings are clearly 

erroneous. 
United States v. Danylo, No. 13-0570/AF 

4 

trial claim. An appellate court might reasonably take six 

months to debate and deliberate on a difficult or complex 

question of law.2 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. Danylo, 73 M.J. at __ (10) 

(internal quotation marks and citation omitted); see United 

States v. Wilson, 72 M.J. 347, 353 (C.A.A.F. 2013) (“The delays 

identified by the military judge weigh against the Government, 

however, that weight is minimized when balanced against the 

Government’s explanations as to the overall time period.”). 

Moreover, several additional facts weigh in favor of 

Appellant when considering the second factor on reasons for 

delay. One, Appellant was held in pretrial confinement while 

the Government appealed the military judge’s earlier ruling in 

favor of Appellant’s speedy trial question. Two, during this 

period, Appellant asserted his right to a speedy trial and 

timely appellate review, including priority review in the 

context of Article 62, UCMJ. In fact, the Government three 

times joined Appellant in requesting expedited appellate review. 

                                                           

2 Indeed, as a general rule “an interlocutory appeal by the 

Government ordinarily is a valid reason that justifies delay.” 

United States v. Loud Hawk, 474 U.S. 302, 315 (1986). But 

“delays in bringing the case to trial caused by the Government’s 

interlocutory appeal may be weighed in determining whether a 

defendant has suffered a violation of his rights to a speedy 

trial.” Id. at 316. 
United States v. Danylo, No. 13-0570/AF 

5 

Three, the applicable law on speedy trial is settled. And 

fourth, most importantly, the Government failed to staff the CCA 

at adequate levels during the pendency of Appellant’s Article 

62, UCMJ, appeal. For sure, points one and two relate directly 

to other Barker factors. But they are relevant to factor two 

addressing the reasons for delay. Why? Because in my view, 

where an accused is in pretrial confinement and otherwise 

asserts his right to priority Article 62, UCMJ, review, 

unexplained delay is not neutral, it cuts in favor of Appellant. 

Neither the Government nor the majority cite any facts that 

counterbalance these facts and pull the second factor back to 

neutral. 

The second divide between the majority and dissent is on 

the question of whether two months of incarceration beyond one’s 

point of adjudged confinement constitutes Barker prejudice, 

where an Appellant otherwise prevails on the preceding three 

factors.3

 In this regard, it is worth noting that the majority 

and dissent agree on the facts: “Appellant served two months of 

confinement beyond his adjudged sentence.” Danylo, 73 M.J. at 

__ (11). 

                                                           

3

 This question arises whether one adopts the majority’s or the 

dissent’s analysis as the majority concludes before addressing 

the prejudice prong of Barker that Appellant has prevailed on 

factors one and three, with the second factor being “more 

neutral.” Danylo, 73 M.J. at __ (10) (internal quotation marks 

and citation omitted). 
United States v. Danylo, No. 13-0570/AF 

6 

However, I disagree with the majority on what as a matter 

of law is required to show Barker prejudice. The Barker Court 

recognized three interests that could give rise to Sixth 

Amendment prejudice: “(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.” United States v. Mizgala, 61 M.J. 122, 129 

(C.A.A.F. 2005) (quoting Barker, 407 U.S. at 532). To be sure, 

the Barker Court held that “[o]f 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.” Id. 

Accordingly, the majority concludes that “[w]hile the first 

interest weighs in Appellant’s favor, the second and third weigh 

against him.” Danylo, 73 M.J. at __ (11). The problem with 

this conclusion is that while Barker highlights the gravity of 

prejudice that impairs the defense, it does not do so at the 

exclusion of the other two interests. 

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 
United States v. Danylo, No. 13-0570/AF 

7 

government.4 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. 

Therefore, because I conclude that all four Barker factors 

favor Appellant, he should prevail on his Sixth Amendment claim. 

                                                           

4

 When delays in the processing of a case are in the course of 

ordinary business and trial strategy, that delay cannot be held 

against the government. United States v. Ewell, 383 U.S. 116, 

120 (1966) (noting that “ordinary procedures for criminal 

prosecution are designed to move at a deliberate pace. A 

requirement of unreasonable speed would have a deleterious 

effect both upon the rights of the accused and upon the ability 

of society to protect itself.”). Article 62(c), UCMJ, is 

consistent with this view and excludes “[a]ny period of delay 

resulting from an appeal under this section . . . in deciding 

any issue regarding denial of a speedy trial.” However, Article 

62, UCMJ, does not purport to eliminate the Sixth Amendment 

right to a speedy trial or give the government a pass on the 

application of Barker v. Wingo.