Speedy trial in the U.S. Air Force

In the recent case of United States v. Johnson, the Air Force Court of Criminal Appeals decided the appellant wasn’t denied a speedy trial. As military defense counsel know, winning a speedy trial argument is very difficult.

I. Factual Background

• Apprehension and Pretrial Confinement. Law enforcement detained Appellant on 12 August 2022 and restricted him to base pending pretrial confinement on 15 August 2022; he remained confined until his general court-martial began on 23 February 2023 .

• Investigative Activities. During confinement, OSI coordinated a complex forensic examination of two iPhones (iPhone 13 and iPhone 7), obtained magistrate search authorizations (12 Aug 2022 oral; 31 Aug 2022 and 14 Oct 2022 expanded written), dispatched specimens to USACIL, and worked with OSI-IG at Quantico to process digital and fingerprint evidence .

• Additional Charges and Coordination. Between August and October 2022, the base legal office and 3 AF/JA collaborated on drafting initial and supplemental charges based on newly identified misconduct at Incirlik AB and photos/videos from a base fitness-center shower; this led to preferral of an additional charge on 20 January 2023 .

• Article 32 Hearing and Referrals. Trial counsel proposed a hearing date of 7 Nov 2022; defense counsel delayed until 28 Dec 2022; the preliminary hearing officer found probable cause on 12 Jan 2023; the SPCMCA excluded 27 days (11 Oct–6 Nov 2022) and 51 days (7 Nov–27 Dec 2022) from the R.C.M. 707 clock; both original and additional charges referred on 24 Jan 2023; arraignment occurred on 23 Feb 2023 .

II. Legal Standards

1. Article 10, UCMJ (10 U.S.C. § 810(a)(1)). Upon pretrial confinement, “immediate steps shall be taken to inform [the accused] of the specific wrong” and to try or dismiss charges; courts measure compliance by “reasonable diligence” rather than “constant motion” and apply a four-factor test (length of delay; reasons; demand; prejudice) derived from Barker v. Wingo, 407 U.S. 514 (1972), but applying a more stringent UCMJ standard .

2. Rule for Courts-Martial 707. R.C.M. 707 requires arraignment within 120 days of preferral or confinement; certain periods may be excluded for “good cause” at the convening authority’s discretion; courts review exclusions for abuse of discretion and test “reasonableness” of both length and cause .

III. Analysis

A. Article 10, UCMJ

1. Length and Reasons for Delay. Appellant remained confined for 195 days before arraignment. The Government pursued an expansive digital‐forensic investigation—securing multiple search orders, coordinating among OSI detachments, OSI-IG, and USACIL, and identifying additional victims—demonstrating “reasonable diligence” in complex, evolving circumstances . Brief scheduling lags for the Article 32 hearing and arraignment resulted primarily from defense counsel’s unavailability (27 Oct–21 Nov 2022; 7 Nov–27 Dec 2022) rather than prosecutorial inertia .

2. Demand for Speedy Trial. Appellant filed a speedy-trial demand on 2 Feb 2023 (day 174), satisfying the third Barker/Thompson factor .

3. Prejudice. Although Appellant alleged anxiety, restricted attorney access, and occasional deprivation of daily comforts, he showed no unique or “most serious” prejudice—i.e., impairment of his defense—beyond that inherent in confinement .

4. Conclusion on Article 10. Viewing the totality of the circumstances and applying the stricter UCMJ standard, the 195-day delay did not constitute a violation: the Government acted with reasonable diligence given the case’s complexity, and Appellant suffered no extraordinary prejudice .

B. R.C.M. 707

1. Computation of Time. From preferral/confinement (13 Aug 2022) to arraignment (23 Feb 2023) elapsed 195 days, exceeding the 120-day limit absent exclusions .

2. Exclusions for Good Cause. – 11 Oct–6 Nov 2022 (27 days): The convening authority excluded time to identify and secure evidence regarding a newly discovered victim (ZP), a process requiring forensic analysis and coordination with the fitness center, which the Rule expressly accommodates to consolidate charges into a single court-martial (R.C.M. 601(e)(2)) .

   • 7 Nov–27 Dec 2022 (51 days): The convening authority excluded defense-counsel unavailability for the Article 32 hearing; the Government cannot be held responsible for defense scheduling conflicts .

   • Additional Exclusions (3 days): Parties agreed to further minor adjustments in a confirmation memorandum.

3. Remaining Time. After exclusions, only 114 days counted against the speedy trial clock, falling within the 120-day requirement .

4. Conclusion on R.C.M. 707. Because the convening authority reasonably excluded specified periods—and appellate review accords broad discretion to such exclusions—the 114 days of unexcluded delay did not breach R.C.M. 707 .

IV. Conclusion
The Court correctly denied Appellant relief. Under Article 10, the Government demonstrated reasonable diligence in a complex digital‐forensic investigation, and Appellant showed no extraordinary prejudice. Under R.C.M. 707, the convening authority properly exercised its discretionary power to exclude periods for good cause, resulting in compliance with the 120-day arraignment requirement.