UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39684 

________________________

UNITED STATES

Appellee

v.

Jenna E. SHOUEY

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary 

Decided 21 October 2020

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Military Judge: Matthew D. Talcott

Approved sentence: Bad-conduct discharge, confinement for 10 months, 

forfeiture of all pay and allowances, reduction to E-1, and a reprimand. 

Sentence adjudged 4 January 2019 by GCM convened at the United 

States Air Force Academy, Colorado.1

For Appellant: Major Yolanda D. Miller, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Major Peter 

F. Kellett, USAF; Mary Ellen Payne, Esquire; Alexis Dorner (legal extern).2

Before POSCH, RAMÍREZ, and RICHARDSON, Appellate Military 

Judges.

Judge RAMÍREZ delivered the opinion of the court, in which Senior 

Judge POSCH and Judge RICHARDSON joined. 

________________________

 

1 Appellant was assigned to the 21st Space Wing at Peterson Air Force Base, Colorado, 

but the court-martial was held at the United States Air Force Academy, also in Colorado. 

2 Ms. Dorner was at all times supervised by an attorney admitted to practice before 

this court.
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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4. 

________________________

RAMÍREZ, Judge:

A general court-martial composed of a military judge sitting alone found 

Appellant guilty, pursuant to her pleas and a pretrial agreement (PTA), of one 

charge and one specification in violation of Article 92, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 892, for failure to obey a lawful order; one charge 

and three specifications in violation of Article 112a, UCMJ, 10 U.S.C. § 912a, 

for the wrongful possession of marijuana, wrongful possession of methamphetamine with the intent to distribute, and wrongful distribution of methamphetamine on divers occasions; and one charge and one specification in violation of 

Article 134, UCMJ, 10 U.S.C. § 934, for prostitution.3,4

The military judge sentenced Appellant to a bad-conduct discharge, confinement for ten months, forfeiture of all pay and allowances, reduction to the 

grade of E-1, and a reprimand. The convening authority approved the sentence

as adjudged, and the PTA had no impact on the convening authority’s ability 

to approve the adjudged sentence.5

On appeal, Appellant raises a single assignment of error:6 whether the military judge abused his discretion when he denied Appellant’s motion to dismiss 

the charges with prejudice for the Government’s alleged violation of Article 10, 

UCMJ, 10 U.S.C. § 810. Appellant specifically raises three time periods when

the Government allegedly failed to take immediate steps to try her: (1) a 61-

day period from pretrial confinement to preferral of charges; (2) a 21-day period 

from preferral until completion of the preliminary hearing; and (3) a 37-day 

period between the preliminary hearing and service of the referred charges.

We find the military judge properly denied Appellant’s motion. Additionally, after reviewing the entire record of this proceeding, we find no factual or 

 

3 All references to the Uniform Code of Military Justice are to the Manual for CourtsMartial, United States (2016 ed.).

4 While Appellant was charged with other crimes, the convening authority agreed not 

to go forward with those offenses as a term of the pretrial agreement (PTA).

5 The PTA provided that the convening authority would not approve a punitive discharge greater than a bad-conduct discharge, and no confinement in excess of 14

months would be approved.

6 This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1982).
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legal insufficiencies, and we find the sentence appropriate. We affirm the findings and sentence.

I. BACKGROUND

After basic training, Appellant was stationed at Malmstrom Air Force Base 

(AFB), Montana. According to Appellant, while at Malmstrom AFB, she and 

her boyfriend, JH, were involved in a “domestic violence situation,” which led 

military authorities to transfer Appellant to Peterson AFB, Colorado. Upon 

arriving at Peterson AFB, Appellant’s commander issued her a no contact order on or about 8 June 2018, prohibiting all contact with JH. 

However, between 8 June 2018 and 17 August 2018, Appellant had multiple contacts with JH, including through telephonic and text message conversations. Moreover, Appellant and JH moved into an apartment together in violation of her commander’s order. Between 1 June 2018 and 17 August 2018, 

Appellant became involved in prostitution and the unlawful possession and 

distribution of drugs. Appellant eventually became the subject of investigations by civilian law enforcement and agents of the Air Force Office of Special 

Investigations (AFOSI). On 17 August 2018, while under AFOSI surveillance, 

Appellant sold methamphetamine, leading to her arrest. On that same day, 

AFOSI agents executed a search warrant of Appellant’s residence and found 

marijuana and methamphetamine, and Appellant was placed in pretrial confinement at the El Paso County Criminal Justice Center, a civilian confinement facility in Colorado. 

Ultimately, charges were preferred and referred, a PTA was negotiated, 

and Appellant’s case was tried by general court-martial. Before trial, Appellant 

moved to dismiss the charges on grounds that the Prosecution failed to take 

“immediate steps” to try her, 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 in the record.

Three days after being placed in pretrial confinement on 17 August 2018, 

the special court-martial convening authority appointed a pretrial confinement 

review officer (PCRO). On 21 August 2018, trial defense counsel provided notice of representation and demanded a speedy trial. On the same day, a pretrial 

confinement hearing was conducted. On 23 August 2018, the PCRO’s decision 

memorandum was completed, finding a sufficient basis to keep Appellant in 

pretrial confinement. On 3 September 2018, the chief of military justice (CMJ) 

at the base where Appellant was assigned met with AFOSI agents to discuss 

the status of Appellant’s case as well as the investigative steps the agents had 

yet to complete. Following the meeting, the CMJ met with AFOSI agents three 

to five times a week regarding the case. 
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As investigation of Appellant’s case continued, on 17 September 2018 the 

CMJ obtained the AFOSI case file. AFOSI agents were awaiting results of the 

examination of a computer hard drive and Appellant’s urinalysis that were 

sent for forensic testing. Although the AFOSI investigation was incomplete, on 

24 September 2018 trial counsel completed a draft of the charges that were 

supported by the evidence. On 25 September 2018, trial defense counsel contacted the Prosecution to inquire about the status of the investigation and 

whether the preferral of charges was forthcoming.

On 26 September 2018, the base legal office sent its analysis of the draft 

charges for review by the general court-martial convening authority’s 

(GCMCA) legal office, which completed its review on 3 October 2018 with suggested edits and corrections.

On 11 October 2018, the AFOSI attempted to obtain the civilian police department report of Appellant’s interview as well as verbal summaries of interviews conducted by a detective involved in the case. 

On 16 October 2018, charges were preferred against Appellant. Trial defense counsel was not available for an Article 32, UCMJ, 10 U.S.C. § 832, preliminary hearing from 19 October through 27 October 2018. The hearing occurred on 30 October 2018, and the preliminary hearing officer’s report was 

completed on 5 November 2018.

On 7 November 2018, trial defense counsel submitted a PTA offer in an 

email to trial counsel and the CMJ. Trial counsel called trial defense counsel 

twice during the week of 13 through 18 November 2018 and left messages to 

discuss the PTA. 

Over the next several weeks, the Prosecution and Defense exchanged several emails regarding the PTA, arraignment, and the trial date. On 19 November 2018, trial defense counsel followed up with the CMJ regarding the PTA 

offer. The next day, trial counsel proposed a 3 December 2018 arraignment. On 

23 November 2018, trial defense counsel responded via email with a modified

PTA offer. 

From 26 November 2018 through 6 December 2018, trial counsel and the 

CMJ coordinated with the senior trial counsel and with the GCMCA’s legal 

office regarding the preliminary hearing officer’s recommendations. 

On 27 November 2018, the CMJ contacted trial defense counsel to confirm 

matters regarding arraignment and the potential PTA. On the same day, trial 

defense counsel responded that he was in court, but would contact the CMJ 

later regarding the PTA offer. On 28 November 2018, the CMJ contacted trial 

defense counsel again with inputs on the PTA offer that were provided by the 

GCMCA’s legal office. On 3 December 2018, trial defense counsel responded 
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that the PTA terms were agreeable, but that it would take a few days to get 

the PTA in writing and signed by Appellant. 

On 4 December 2018, the referral package was sent to the GCMCA’s legal 

office. On 6 December 2018, trial defense counsel signed and served a formal 

PTA offer. On 7 December 2018, trial defense counsel emailed the Prosecution 

with recommendations as to which specifications should be referred and not 

referred in order to reach an agreement on the terms of a PTA. On the same 

day, the GCMCA referred the charges. This offer was never acted upon by the 

GCMCA as trial defense counsel continued to communicate with the Government with recommendations regarding which specifications should be referred 

and not referred.

On 11 December 2018, the referred charges were served on Appellant. Appellant again demanded a speedy trial. On 13 December 2018, Appellant was 

arraigned. On 14 December 2018, the trial defense counsel filed an expert request for a presentencing evaluation. Meanwhile, the Prosecution indicated it 

would be ready for trial on 17 December 2018. On 19 December 2018, trial 

defense counsel withdrew its request for expert assistance. On 20 December 

2018, the GCMCA signed a second PTA offer submitted by Appellant. On 27 

December 2018, trial defense counsel filed “Defense Motion to Dismiss for Article 10 Violations.” Trial began on 3 January 2019 and concluded on 4 January 

2019. 

After articulating the Barker v. Wingo, 407 U.S. 514 (1972), factors and 

applying the facts to those factors, the military judge denied Appellant’s motion to dismiss. Ultimately, Appellant pleaded guilty in accordance with the 

PTA that she negotiated with the convening authority.

II. DISCUSSION 

A. Law

When a military member is placed in confinement prior to trial, “immediate 

steps” must be taken to inform her of the specific wrong of which she is accused 

and either try her or release her. Article 10, UCMJ, 10 U.S.C. § 810.

This court reviews the question of whether an appellant was denied her 

right to a speedy trial under Article 10, UCMJ, de novo. United States v. Wilson, 72 M.J. 347, 350 (C.A.A.F. 2013) (citations omitted). However, we must 

give “substantial deference to a military judge’s findings of fact that 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).

The speedy trial requirement of Article 10, UCMJ, does not “demand constant motion, but does impose on the Government the standard of ‘reasonable 
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diligence in bringing the charges to trial.’” United States v. Cooley, 75 M.J. 247, 

259 (C.A.A.F. 2016) (quoting Mizgala, 61 M.J. at 127). Appellate courts should 

remain mindful of “the proceeding as a whole and not mere speed.” Mizgala, 

61 M.J. at 129. 

The United States Supreme Court established a four-factor test to determine “reasonable diligence,” assessing: “(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.” Wilson, 72 M.J. at 351 (citing Barker, 407 

U.S. at 530). No one factor is “necessary or sufficient to finding of a deprivation 

of the right of speedy trial.” Cooley, 75 M.J. at 259 (quoting Barker, 407 U.S. 

at 533).

Under the military’s speedy trial jurisprudence, courts “break down the periods of delay, analyze the reasons for each, and may express concern with 

some but not other periods of delay.” United States v. Danylo, 73 M.J. 183, 190 

(C.A.A.F. 2014) (citations omitted). Generally, “[s]hort periods of inactivity are 

not fatal to an otherwise active prosecution.” United States v. Thompson, 68 

M.J. 308, 312 (C.A.A.F. 2010) (quoting Mizgala, 61 M.J. at 127). 

When assessing the reason for delay, this court should consider the context, 

because 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 circumstances. Danylo, 73 M.J. at 187. Ordinary “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 has held that Barker does not require an affirmative 

demonstration of prejudice to prove a denial of the constitutional right to a 

speedy trial. Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam); see United 

States v. Miller, 66 M.J. 571, 577 (N.M. Ct. Crim. App. 2008) (finding an Article 

10, UCMJ, violation even though the accused suffered no “obvious prejudice”).

The Supreme Court identified three interests, related to the speedy trial 

protection, to consider when assessing prejudice: (1) “to prevent 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.
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B. Analysis 

We find sufficient evidence in the record to support the military judge’s 

findings of fact. Additionally, we find the military judge correctly applied the 

applicable legal standards to the facts.

Both parties agree that Appellant made two demands for speedy trial. 

Therefore, we first analyze the length of the delay and the reasons for the delay. 

While the total period of pretrial confinement was not insignificant, 139 

days, it is not indicative of prejudice. Appellant was confined for multiple 

charges including drug possession, drug distribution, and prostitution. Additionally, the charges in this case spanned military and civilian jurisdictions. 

Finally, the Government brought these charges to trial with “reasonable diligence.”

During the first period of alleged delay, from pretrial confinement to preferral of charges, the Government was actively preparing its case. The CMJ 

conducted meetings with the AFOSI approximately three to five times a week 

for about six weeks, beginning on 3 September 2018. On 17 September 2018, 

the CMJ received a copy of the investigative file from the AFOSI containing 

evidence acquired to that date. The following week, trial counsel completed a 

draft of the charges and forwarded that analysis to the convening authority’s 

legal office. One week later, the analysis was returned to trial counsel with 

inputs from the GCMCA’s legal staff, and the charges were preferred on 16 

October 2018. 

While the military judge found the length of time from pretrial confinement 

to preferral of charges “facially excessive,” he also found “the reasons for the 

delay to be reasonable,” and that the Government “acted with reasonable diligence in bringing this case to trial.” We also find that the length of time, in 

light of the number and complexity of Appellant’s charges, was reasonable. The 

record shows that during the investigation, the AFOSI conducted several wiretaps, interviews, a urinalysis, and a forensic analysis on a laptop computer. 

Appellant provides no support for her contention that the length of time it took 

investigators to conduct these investigative steps was unreasonable.

Appellant alleges another delay, from preferral of charges to completion of 

the preliminary hearing officer’s report, was unreasonable. However, we find 

no unreasonable delay. On 17 October 2018, the Government identified a preliminary hearing officer who was suitable and available to conduct a hearing. 

Appellant’s trial defense counsel was not available from 19 October through 27 

October 2018. On 30 October 2018, one duty day after the trial defense counsel 

was again available, the hearing was conducted. On 5 November 2018, the preliminary hearing officer completed his report. Notwithstanding the conflicts in 
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the trial defense counsel’s schedules, Appellant’s case proceeded through this 

pre-referral period without unreasonable delay.

Finally, from completion of the preliminary hearing to the service of 

charges that the convening authority referred, Appellant contends that an unreasonable 37-day delay occurred. Between 7 November and 4 December 2018,

there were various communications between trial counsel and trial defense 

counsel. Appellant initiated PTA discussions with the Government on 7 November 2018. On 6 December 2018, trial defense counsel signed and served a 

formal PTA offer. The next day, trial defense counsel emailed the Prosecution 

with recommendations regarding referral. On 7 December 2018, the convening

authority referred charges, and on 11 December 2018, Appellant renewed her 

demand for a speedy trial. We find no unreasonable delay during this period.

Considering the combined length of the pretrial delay, we consider the 

fourth Barker factor—prejudice to Appellant. See Barker, 407 U.S. at 530. 

While not required to affirmatively demonstrate prejudice, Moore, 414 U.S. at 

26, Appellant claims she suffered prejudice attributable to the 139-day delay 

that occurred while she was in pretrial confinement. Appellant filed a motion 

to consider her declaration regarding prejudice, which we granted.7 In her declaration, she alleges the conditions of confinement, namely the lack of a means 

for exercise and the lack of natural sunlight, violated her rights as an Air Force 

detainee. She further claims she was suffering anxiety due to her inability to 

manage her finances, and that her ability to assist in her defense was substantially affected by her confinement because she was unable “to call [her] attorney on a non-recorded line.” 

We find no causal connection between these difficulties and the delays Appellant claims are unreasonable even if this court may consider them. There is 

no evidence that the conditions and anxiety Appellant alleges are different 

from those that a typical accused individual would experience. Additionally, 

there is nothing to suggest that Appellant’s trial defense counsel was impaired 

at trial or in pretrial preparations by the time it took the Government to bring 

Appellant to trial.

While the length of delay, in total, may weigh in favor of Appellant, and 

Appellant demanded a speedy trial, the reasons for delay were reasonable, and 

we find no prejudice attributable to any delay. Therefore, we find Appellant’s 

speedy trial rights under Article 10, UCMJ, were not violated. The military 

 

7 Following this court’s Article 66(c), UCMJ, 10 U.S.C. § 866(c), mandate to review “the 

entire record,” we assume without deciding that this court has authority to consider 

Appellant’s outside-the-record declaration on the issue.
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judge did not abuse his discretion in his factfinding, and we conclude Appellant 

has not shown denial of her right to a speedy trial under Article 10, UCMJ.

III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court