U NITED S TATES AIR F ORCE
                 C OURT OF C RIMINAL APPEALS
                               ________________________

                               Misc. Dkt. No. 2020-02
                               ________________________

                                 UNITED STATES
                                    Appellant
                                            v.
                          Matthew C. HARRINGTON
                  Senior Airman (E-4), U.S. Air Force, Appellee
                               ________________________

         Appeal by the United States Pursuant to Article 62, UCMJ
                              Decided 26 August 2020 1
                               ________________________

Military Judge: Christopher M. Schumann (arraignment); Bryan D.
Watson.
GCM convened at: Nellis Air Force Base, Nevada.
For Appellant: Major Dayle P. Percle, USAF (argued); Colonel Shaun S.
Speranza, USAF; Mary Ellen Payne, Esquire.
For Appellee: Captain Alexander A. Navarro, USAF (argued); Mark C.
Bruegger, Esquire.
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Chief Judge J. JOHNSON delivered the opinion of the court, in which
Senior Judge POSCH and Judge KEY joined.
                               ________________________

       This is an unpublished opinion and, as such, does not serve as
       precedent under AFCCA Rule of Practice and Procedure 30.4.
                                ________________________




1   We heard oral argument in this case in a closed session on 24 July 2020.
                United States v. Harrington, Misc. Dkt. No. 2020-02


J. JOHNSON, Chief Judge:
    One Charge and Specification alleging Appellee committed sexual assault
in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920, were referred for trial by general court-martial on 13 May 2019. 2 Appel-
lee was arraigned on 7 June 2019; the military judge presided over a motions
hearing on 15 and 16 October 2019; and the court-martial resumed on 9 March
2020. On 10 March 2020, the military judge dismissed the Charge and Speci-
fication, with prejudice, finding a violation of Appellee’s Sixth Amendment 3
right to speedy trial.
    The Government brings this interlocutory appeal under Article 62, UCMJ,
10 U.S.C. § 862, challenging the military judge’s ruling on the grounds that he
erred in finding a violation of Appellee’s Sixth Amendment right to a speedy
trial. We agree.

                                 I. BACKGROUND
    The court-martial that is the subject of this appeal represents the Govern-
ment’s second attempt to prosecute Appellee for this particular Charge and
Specification. In November 2016, a general court-martial convicted Appellee
for this offense, contrary to his pleas, but on 25 September 2018 this court set
aside the findings and sentence and authorized a rehearing. United States v.
Harrington, No. ACM 39223, 2018 CCA LEXIS 456 (A.F. Ct. Crim. App. 25
Sep. 2018) (unpub. op.) (Harrington I). A fuller account of the events that gave
rise to the Charge and Specification and of the first court-martial are set forth
in that opinion. For purposes of the present appeal, a more abbreviated account
is sufficient.
A. Factual Background 4
    In January 2016, Appellee and Staff Sergeant (SSgt) FC 5 were co-workers
stationed at Creech Air Force Base (AFB), Nevada. On 30 January 2016, SSgt


2Unless otherwise noted, references to the punitive articles of the Uniform Code of
Military Justice (UCMJ) are to the Manual for Courts-Martial, United States (2012
ed.); all other references to the UCMJ, the Rules for Courts-Martial, and the Military
Rules of Evidence are to the Manual for Courts-Martial, United States (2016 ed.).
3   U.S. CONST. amend. VI.
4The background is drawn from the record of the first court-martial and this court’s
opinion in Harrington I.
5SSgt FC was a senior airman (SrA) at the time of the alleged offense, but a SSgt at
the time of the rehearing.




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              United States v. Harrington, Misc. Dkt. No. 2020-02


FC attended a party at the off-base residence of another co-worker, Technical
Sergeant (TSgt) KW. 6 Appellee and several other individuals, mostly Airmen,
also attended the party. SSgt FC and Appellee had no prior romantic or sexual
relationship.
    Appellee, SSgt FC, and several others played adult party games. One game
was an “adult” or “drinking” version of Jenga, a game that involves removing
individual blocks from a tower of blocks. In this version, each block had an
instruction printed on it for the participant to perform, often of a titillating
nature—for example, removing an article of clothing or electing to take a “body
shot” of alcohol from a location on another player’s body. In the course of the
game, SSgt FC lowered or removed her pants, and Appellee elected to take
“body shots” from SSgt FC’s mouth, from her cleavage, and from between her
buttocks. SSgt FC permitted Appellee to do so as part of the game. TSgt KW
and another attendee, LB, 7 were among those present during the Jenga game.
    Most of the partygoers consumed alcohol before and during the games, and
SSgt FC became highly intoxicated. She had to leave the games at certain
points because she felt sick. Eventually, TSgt KW and another individual put
SSgt FC to bed in an upstairs bedroom to sleep as the party continued down-
stairs. SSgt FC testified at the first trial that when she awoke sometime later,
her pants were lowered to around her thighs, and Appellee was lying behind
her with his penis inside her and his hand on her hip. As SSgt FC initially lay
immobile, Appellee “thrusted a few times” and kissed her on the shoulder.
When SSgt FC moved slightly, Appellee withdrew and moved away from her
on the bed. When Appellee stopped moving, SSgt FC arose, pulled her pants
up, and left the room.
B. First Court-Martial and Harrington I
    Appellee was charged with a single specification of sexual assault by caus-
ing bodily harm to SSgt FC in violation of Article 120, UCMJ. Before the first
trial, the Defense filed a motion to admit certain evidence regarding SSgt FC
under Mil. R. Evid. 412, including inter alia SSgt FC’s behavior during the
Jenga game. The Defense contended this evidence was admissible as both evi-
dence of prior sexual behavior with the Appellee under Mil. R. Evid.
412(b)(1)(B) and was constitutionally required evidence under Mil. R. Evid.




6TSgt KW was a SSgt at the time of the alleged offense, but a TSgt at the time of the
rehearing.
7 LB was a SrA at the time of the party, but separated from the Air Force between the
time of the original trial and the rehearing.


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             United States v. Harrington, Misc. Dkt. No. 2020-02


412(b)(1)(C), in support of defenses based on both actual consent and reasona-
ble mistake of fact as to consent. The Government and SSgt FC—through her
Special Victims’ Counsel (SVC)—opposed the motion.
    The military judge who presided over the first court-martial conducted a
closed Article 39a, UCMJ, 10 U.S.C. § 839(a), session where he received evi-
dence and heard argument. Both LB and TSgt KW testified at this hearing. LB
testified, inter alia, that SSgt FC lowered her pants during the Jenga game,
and that Appellee took shots from SSgt FC’s buttocks and between her breasts.
TSgt KW testified, inter alia, that she remembered Appellee took a shot from
SSgt FC’s mouth during the Jenga game. The military judge ruled the evidence
of SSgt FC’s behavior with Appellee during the Jenga game was not admissible
under Mil. R. Evid. 412(b)(1)(B) or (C). He allowed evidence that SSgt FC, Ap-
pellee, and other attendees played party games that involved drinking alcohol,
but he did not permit references to anyone’s specific behavior during the
games.
    The Defense repeatedly requested reconsideration of this ruling through-
out the trial, but the military judge denied each request. On 20 November
2016, the court members convicted Appellee as charged. The sentence ap-
proved by the convening authority included a dishonorable discharge, forfei-
ture of $1,066.00 pay per month until completion of appellate review, reduction
to E-1, and a reprimand.
    On 25 September 2018, a divided panel of this court found the military
judge erred by excluding the Mil. R. Evid. 412 evidence of the interactions be-
tween Appellee and SSgt FC during the Jenga game. Harrington I, unpub. op.
at *12–22. The court set aside the findings and sentence, returned the record
of trial, and authorized a rehearing.

Toward a Rehearing
   On 25 October 2018, the Government moved this court for reconsideration.
On 26 October 2018, the Military Justice Division at Joint Base Andrews, Mar-
yland, returned the record of trial to the legal office at Nellis AFB—prema-
turely, in light of the pending motion at the Court of Criminal Appeals. After
the record arrived at Nellis AFB, the legal office sent it back to the Military
Justice Division pending resolution of the motion for reconsideration and a
possible appeal to the United States Court of Appeals for the Armed Forces
(CAAF).
    On 19 November 2018, this court denied the motion for reconsideration.
The Judge Advocate General elected not to refer Harrington I to CAAF, and
the record was ultimately returned to the Nellis AFB legal office on 4 February
2019. At some point between 19 and 22 February 2019, the Government deter-
mined SSgt FC was willing to participate in a rehearing and did not support


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             United States v. Harrington, Misc. Dkt. No. 2020-02


an alternative disposition of the case. Over the next several weeks, various
individuals and offices at Nellis AFB and elsewhere coordinated in order to
return Appellee to duty for a rehearing. As of 23 April 2019, Appellee had re-
ported to Creech AFB and was represented by an Area Defense Counsel (ADC).
On 13 May 2019, the convening authority referred the Charge and Specifica-
tion to a general court-martial for a rehearing. The trial was originally set for
19 August 2019.
    On 30 May 2019, Appellee’s ADC submitted on behalf of Appellee a request
for individual military defense counsel (IMDC) in order to be represented by
Appellee’s trial defense counsel from the first court-martial, who had changed
positions and was serving as a senior trial counsel.
    Appellee was arraigned on 7 June 2019, while the IMDC request was pend-
ing. Appellee deferred forum selection, motions, and pleas at that time.
   On 12 June 2019, the Defense made a written demand for speedy trial in
conjunction with a discovery request. The IMDC request was denied on 24 July
2019. On 31 July 2019, a circuit defense counsel (CDC) was detailed to join the
ADC in representing Appellee, and on 5 August 2019 the Defense moved for a
continuance in order to give the CDC time to prepare. The military judge
granted the continuance and set 15 October 2019 as the new trial date.
    On 27 September 2019, as the new trial date approached, the Government
moved to have LB declared unavailable for purposes of testifying at the rehear-
ing. In support of its motion, the Government attached an email that a parale-
gal sent LB in June 2019 requesting that LB call the paralegal regarding the
rehearing. The Defense opposed the motion, and the military judge denied it,
finding the Government had provided insufficient evidence of LB’s unavaila-
bility.
    On 11 October 2019, the Government informed the Defense it could not find
LB and would be unable to arrange for him to travel to the rehearing. The
Defense then moved for a continuance and to compel the Government to pro-
duce LB. On 13 October 2019, the military judge granted the defense request
for a continuance and set a new trial date of 9 March 2020. The military judge
held a motions hearing on 15 October 2019, the previously scheduled trial date.
D. Speedy Trial Motion and Rulings
    The motions hearing continued into 16 October 2019, when the Defense
moved to dismiss the Charge and Specification for violation of Appellee’s right
to speedy trial under both R.C.M. 707 and the Sixth Amendment. The military




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              United States v. Harrington, Misc. Dkt. No. 2020-02


judge denied the motion to dismiss in a written ruling dated 28 October 2019. 8
With respect to the Sixth Amendment, the military judge applied the four fac-
tors from Barker v. Wingo, 

, 530–33 (1972). First, he found the
length of the delay was facially unreasonable under the circumstances and
warranted a full Barker analysis; in particular, he found very little progress
was made in bringing Appellee to trial between 4 February 2019 and the ar-
raignment on 7 June 2019. The military judge noted that because this was a
rehearing, the investigation was already complete, no Article 32, UCMJ, 10
U.S.C. § 832, hearing was required, and the Charge and Specification were the
same as previously litigated. Second, he found the reasons for the delay were
“nearly all . . . primarily attributable to the Government’s processing of this
case, or . . . derived immediately therefrom.” He particularly noted the record
disclosed little explanation for the delay between 4 February 2019 and referral
on 13 May 2019, and again noted that because this was a rehearing, the inves-
tigation was already complete and no Article 32, UCMJ, hearing was required.
Third, the military judge found the June 2019 demand for speedy trial tipped
that factor in the Defense’s favor, but “only very slightly.” Finally, and at this
point decisively, the military judge found no demonstrated prejudice to Appel-
lee at that time. In particular, he found that because the Defense’s requested
witnesses had not been produced or provided testimony, he could not assess
whether the Defense’s case at trial had been impaired. Accordingly, he denied
the motion to dismiss at that point, but enjoined the parties to be “vigilant for
evidence of prejudice to the Accused as this case progresses toward trial.”
    The court-martial reconvened on 9 March 2020. The Defense orally moved
for reconsideration of its motion to dismiss for violation of Appellee’s right to a
speedy trial, specifically under the Sixth Amendment. The military judge con-
ducted a hearing at which LB and TSgt KW testified. LB testified, inter alia,
that even after reviewing his prior motion testimony from the original trial, he
could no longer remember some details of the night of the party, and of the
Jenga game in particular. Although he now remembered Appellee taking a
body shot from SSgt FC’s belly (and vice versa), he could not remember Appel-
lee taking shots from SSgt FC’s breasts or buttocks. LB also acknowledged he
had “dodged” the Government’s efforts to contact him prior to October 2019.
TSgt KW testified that in June 2017 she began to experience symptoms of ep-
ilepsy, and in June 2019 she was formally diagnosed with that disorder. She
testified this condition had dramatically impaired her short-term and long-



8With respect to the requirement in Rule for Court-Martial (R.C.M.) 707 that the Gov-
ernment bring Appellee to trial within 120 days, the military judge found the 120 days
began running on 4 February 2019; with excludable time excluded, he found the Gov-
ernment arraigned Appellee within the 120-day requirement.


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              United States v. Harrington, Misc. Dkt. No. 2020-02


term memory. As of March 2020, TSgt KW barely recalled the night of the
party and remembered nothing of the Jenga game.
    On 10 March 2020, the military judge granted the defense motion to dis-
miss with prejudice. He again assessed the Barker factors, reaching similar
findings and conclusions with respect to the length of the delay, reasons for the
delay, and demand for speedy trial as he had in his 28 October 2019 ruling. He
added that the reason the trial had been continued until 9 March 2020 was
that until that point the Government’s efforts to secure the presence of LB had
been “wholly inadequate.” As to the fourth Barker factor, prejudice, the mili-
tary judge now found Appellee’s ability to defend himself at trial had been im-
paired due to the lost memories of LB and TSgt KW. He included in his findings
of fact the conclusion “that if the United States had proceeded expeditiously
with bringing this case to a rehearing, it is likely that at least some of the
exculpatory evidence which [the Court of Criminal Appeals] directed to be ad-
mitted at this hearing[ 9] (and which the Defense seeks to introduce) would
have been available.”
    The military judge rejected the Government’s arguments that admitting
LB’s and TSgt KW’s prior testimony from the first trial under either Mil. R.
Evid. 803(5) or Mil. R. Evid. 804(b)(1) would be an adequate substitute. With
regard to Mil. R. Evid. 804(b)(1), the military judge found the prior trial de-
fense team did not have a sufficiently similar motive for presenting testimony
at a Mil. R. Evid. 412 motion hearing as the current defense team would have
in using the testimony for findings, given the respective burdens and purposes
involved. With regard to Mil. R. Evid. 803(5), the military judge acknowledged
that although the Defense would be permitted to avail itself of that rule, he
would not require the Defense to “rely nearly-exclusively upon this rule as the
sole source of the very information which the [Court of Criminal Appeals] has
directed should now be admissible, while simultaneously leaving the Govern-
ment free to attempt to prove its own case with live witnesses.”
E. Reconsideration
   The Government promptly moved for reconsideration, which the military
judge agreed to entertain. The Government offered additional evidence in sup-
port of its motion. First, it attached numerous emails from the period between



9 This characterization of Harrington I is inaccurate. The court’s opinion did not “di-
rect” that any evidence be admitted at a rehearing; it directed only that the findings
and sentence of the first court-martial were set aside due to an error, and that the
record be returned, and a rehearing authorized. Harrington I, unpub. op. at *22.




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                 United States v. Harrington, Misc. Dkt. No. 2020-02


4 February 2019 and 28 May 2019 indicating the administrative steps the Gov-
ernment was taking to bring Appellee to a rehearing. Second, it called SSgt
SC, another individual who attended the January 2016 party, to provide mo-
tion testimony. 10 SSgt SC testified that he recalled Appellee taking body shots
from SSgt FC’s mouth, belly, and rear. He could not recall whether someone
took a shot from SSgt FC’s chest. After SSgt SC testified, the military judge
noted for the record his observations of SSgt SC’s demeanor when he testified.
The military judge observed that SSgt SC appeared “thoughtful” and “careful
with his words,” but “hesitant” and “halting” when he was “trying to recollect.”
During argument on the reconsideration motion, the Government offered to
stipulate to the relevant facts; however, when the military judge asked the De-
fense whether it would agree to such a stipulation, the Defense declined to do
so.
    After receiving argument, the military judge denied the Government’s re-
consideration motion orally and in writing. The military judge adopted the
findings of fact from his 10 March 2020 ruling dismissing the Charge and Spec-
ification with prejudice, but accepted the Government’s recitation of the ad-
ministrative steps the Government took to retry Appellee. The military judge
found SSgt SC’s testimony to be an insufficient substitute for the lost memories
of LB and TSgt KW. He found SSgt SC’s memory was “flawed, . . . due, in some
part, to the passage of time,” and that SSgt SC’s “reliability as a witness [was]
low.” In addition, SSgt SC could not remember Appellee taking a shot from
SSgt FC’s breasts, as LB had previously testified to. The military judge further
commented that under the circumstances he would “not force” Appellee to
agree to a stipulation of fact. With regard to the Government’s evidence of ad-
ministrative steps, the military judge stated:
          [T]he United States has provided insufficient information that
          would, in any way, excuse the amount of time that the United
          States took in order to bring [Appellee] properly before this re-
          hearing. The obvious delay in getting the case referred to trial,
          about 100 days, from receipt of the requisite materials until the
          actual referral, plus the amount of time that passed as a result
          of the continuance necessitated by the inadequacy of the Gov-
          ernment’s action to locate [LB], totals approximately 246 days.
          ....
          Regarding . . . the period from late January through May of 2019,
          the Court notes that the Government’s filing contains numerous



10   SSgt SC did not testify at Appellee’s first court-martial.


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              United States v. Harrington, Misc. Dkt. No. 2020-02


       references to a list of administrative tasks which had to be ac-
       complished by military personnel . . . .
       However, . . . [a]ccording to that list of activities, apparently lit-
       tle or no effort was made during this timeframe in order to actu-
       ally interview, prepare, or even locate actual live witnesses for
       this rehearing.
       [ ] The Court is well aware of the various administrative tasks
       required in order to bring an Accused onto active duty for a re-
       hearing. . . . However, that is not the point of this Motion to Dis-
       miss. Had the Government begun preparing this case for actual
       litigation, the Government’s representatives would have had the
       opportunity to detect the memories which were degrading, along
       with [TSgt KW’s] worsening medical condition. . . . Because the
       Government was, apparently, not actually preparing for court-
       room litigation during this timeframe, these issues went unde-
       tected for months. . . .
   The military judge reiterated that preparing Appellee’s rehearing should
have been simplified by the fact that the Charge, Specification, and witnesses
were the same as for the prior trial, and the Government provided “no evi-
dence” that any of the witnesses were actually difficult to locate—to include
LB after the military judge’s “intervention in October 2019.” The military judge
continued:
       Upon reconsidering this matter, this Court must continue to ar-
       rive at the conclusion that the United States, even if it has not
       been derelict or negligent, has nonetheless fallen short in its ob-
       ligations in bringing this case to a rehearing, and the Defense
       has been directly and substantially prejudiced as a result. All of
       this has had the ultimate result of thwarting the express intent
       of [the Court of Criminal Appeals] when it authorized a rehear-
       ing in this case.
       ....
       [ ] If the United States had proceeded expeditiously and effec-
       tively with bringing this case to a rehearing, it is likely that at
       least some of the exculpatory evidence which [the Court of Crim-
       inal Appeals] specifically directed to be admitted at this rehear-
       ing, and which the Defense seeks to introduce, would have been
       available for [Appellee’s] use.
   On 13 March 2020, the Government provided timely notice of its intent to
appeal. The record was delivered to the court on 31 March 2020.



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              United States v. Harrington, Misc. Dkt. No. 2020-02


                                  II. DISCUSSION
A. Law
   1. Jurisdiction and Standard of Review
    This court has jurisdiction to hear this appeal under Article 62(a)(1)(A),
UCMJ, 10 U.S.C. § 862(a)(1)(A), which authorizes the Government to appeal
“[a]n order or ruling of the military judge which terminates the proceedings
with respect to a charge or specification.”
    When the Government appeals a ruling under Article 62, UCMJ, this court
reviews the military judge’s decision “directly and reviews the evidence in the
light most favorable to the party which prevailed at trial.” United States v.
Lewis, 

, 453 (C.A.A.F. 2019) (quoting United States v. Pugh, 

, 3 (C.A.A.F. 2017)). Because this issue is before us pursuant to a Government
appeal, we may act only with respect to matters of law. Article 62(b), UCMJ,
10 U.S.C. § 862(b). We may not make findings of fact, as we are limited to
determining whether the military judge’s factual findings are clearly erroneous
or unsupported by the record. United States v. Gore, 

, 185 (C.A.A.F.
2004).
    We review Sixth Amendment speedy trial issues de novo. United States v.
Danylo, 

, 189 (C.A.A.F. 2014) (citing United States v. Cooper, 

, 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.’”

(quoting United States v.
Thompson, 

, 312 (C.A.A.F. 2010)).
   2. Speedy Trial
     An accused’s right to speedy trial is protected by statute, by regulation, and
by the Constitution. United States v. Tippit, 

, 72 (C.A.A.F. 2007); see
also United States v. Reed, 

, 451 (C.A.A.F. 1995)). For military ser-
vicemembers, the Sixth Amendment right to speedy trial is triggered by the
preferral of charges or the imposition of pretrial restraint. 

.
“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 appel-
lant made a demand for a speedy trial; and (4) prejudice to the appellant.’”

(quoting United States v. Mizgala, 

, 129
(C.A.A.F. 2005) (citing 

)). However, “none of the four
factors . . . [i]s either a necessary or sufficient condition to the finding of a dep-
rivation of the right of speedy trial. Rather, they are related factors and must
be considered together with such other circumstances as may be relevant.”

. With regard to prejudice, the Court in Barker ex-
plained:

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                United States v. Harrington, Misc. Dkt. No. 2020-02


          Prejudice, of course, should be assessed in the light of the inter-
          ests of defendants which the speedy trial right was designed to
          protect. This Court has identified three such interests: (i) to pre-
          vent 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. If witnesses die
          or disappear during a delay, the prejudice is obvious. There is
          also prejudice if defense witnesses are unable to recall accu-
          rately events of the distant past.

An accused who asserts a violation of the Sixth Amendment right
to speedy trial bears the burden of persuasion to demonstrate the existence of
prejudice. See R.C.M. 905(c)(2)(A); 

.
    In contrast to the Sixth Amendment, the Fifth Amendment 11 speedy trial
guarantee applies even before an accused is formally charged or subjected to
pretrial restraint. See 

(analyzing alleged violation of
speedy trial under Fifth Amendment because “Sixth Amendment speedy-trial
protection does not apply to pre-accusation delays where there has been no
restraint”) (citations omitted). However, “[a]bsent restraint, the ‘primary guar-
antee’ . . . against pre-accusation delay is the statute of limitations.”

States v. Marion, 

, 322 (1971)). In order to demonstrate
a speedy trial violation under the Fifth Amendment, “the defendant has the
burden of proof to show an egregious or intentional tactical delay and actual
prejudice.”

For example, “[t]here may be a due process violation
when [delay is] ‘incurred in wreckless [sic] disregard of circumstances, known
to the prosecution, suggesting that there existed an appreciable risk that delay
would impair the ability to mount an effective defense.’”

v. Lovasco, 

, 795 n.17 (1977)).
      3. Exceptions to the Hearsay Rule
    Hearsay, defined as an out-of-court statement offered for the truth of the
matter asserted in the statement, is generally inadmissible unless an excep-
tion applies. Mil. R. Evid. 801(c); Mil. R. Evid. 802. One such exception is Mil.
R. Evid. 803(5), which provides that a record “on a matter the witness once
knew about but now cannot recall well enough to testify fully and accurately,”
“was made or adopted by the witness when the matter was fresh in the wit-
ness’s memory,” and “accurately reflects the witness’s knowledge,” is not ex-
cluded by the rule against hearsay and may be read into evidence.


11   U.S. CONST. amend. V.


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                 United States v. Harrington, Misc. Dkt. No. 2020-02


   Mil. R. Evid. 804(b)(1) provides another exception to the rule against hear-
say for, inter alia, former testimony that:
          (A) was given by a witness at a trial, hearing, or lawful deposi-
          tion, . . . and (B) is now offered against a party who had an op-
          portunity and similar motive to develop it by direct, cross-, or
          redirect examination. . . . [A] record of testimony given before a
          court-martial, court of inquiry, military commission, other mili-
          tary tribunal, or preliminary hearing under Article 32 is admis-
          sible . . . if the record of the testimony is a verbatim record.
B. Analysis
    Although Appellee has not been confined, the Charge and Specification
have never been dismissed and have remained pending since Harrington I was
decided. Accordingly, Appellee’s Sixth Amendment right to speedy trial has
remained in effect throughout the time period relevant to the instant appeal. 12
See 

. Therefore, we turn to the military judge’s assessment
of the Barker factors.
      1. Length of Delay
    The military judge focused on two particular periods to find facially unrea-
sonable delay: the “about 100 days” that elapsed between 4 February 2019,
when the record was returned to Nellis AFB, and 13 May 2019, when the con-
vening authority referred the Charge and Specification to trial; 13 and the 146
days that elapsed between the 15 October 2019 scheduled trial date and the
rescheduled date of 9 March 2020 resulting from the granted defense motion
for a continuance. 14
   With respect to the delay between 4 February 2019 and 13 May 2019, we
agree with the military judge in certain respects. First, based on the record
before us, it appears the Government approached the steps required to retry
Appellee in a sequential manner, focusing first on contacting SSgt FC, then on
the process to return Appellee to duty for trial, then on routing the referral to


12Because Appellee fails in his burden to demonstrate prejudice to prevail under a
Sixth Amendment analysis, we find it unnecessary to analyze the higher threshold to
demonstrate a Fifth Amendment violation. See 

.
13   The exact period is 98 days.
14To a lesser extent, the military judge also suggested the Government contributed to
the first defense request for a continuance from 19 August 2019 until 15 October 2019
in order to give the newly appointed senior defense counsel time to prepare, because
Appellee’s 30 May 2019 IMDC request was not denied until 24 July 2019. However,
the military judge does not appear to have factored this period in the “approximately
246 days” of delay he specified in his ruling on the motion for reconsideration.


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             United States v. Harrington, Misc. Dkt. No. 2020-02


the convening authority. According to the Government’s own chronology, peri-
ods of up to a week or more passed without discernible progress toward the
rehearing; there is little doubt the case could have been processed faster than
it was. In addition, we agree with the military judge that, other than contacting
SSgt FC through SVC channels to determine if she was willing to participate
in a rehearing, it appears that prior to June 2019 the Government did little to
prepare for actual litigation—for example, locating or contacting other wit-
nesses. Furthermore, we agree with the military judge that in some respects
the rehearing on the same Charge and Specification should have been simpler
to prepare than the original trial, because it had been done before and no Ar-
ticle 32, UCMJ, hearing was required.
    Moreover, we disagree with the Government’s reliance on R.C.M. 707’s 120-
day deadline for bringing an accused to arraignment as establishing the stand-
ard for a presumptively unreasonable delay in a Sixth Amendment context. As
the Court explained in Barker, the Sixth Amendment right to speedy trial is
not amenable to bright-line rules, and “is necessarily dependent upon the pe-
culiar circumstances of the 

–31. The Government would
have us apply the R.C.M. 707 standard out of its intended context—as an ad-
ditional rule-based requirement for the Government to meet—and use it to
limit an accused’s ability to invoke the constitutional protections of the Sixth
Amendment. We are not persuaded R.C.M. 707 is intended to shield the Gov-
ernment from scrutiny for what is an otherwise facially unreasonable delay.
    However, we are also mindful that “[w]hile justice should be administered
with dispatch, the essential ingredient is orderly expedition and not mere
speed.” Smith v. United States, 

, 10 (1959). There was a certain logic
to how the Government proceeded through the steps of bringing Appellee to a
rehearing. Ascertaining SSgt FC’s willingness to participate was a legitimate
starting point, and returning an accused from civilian life to active duty for
trial may be a relatively unusual situation for a legal office to navigate. Alt-
hough the Government was certainly not swift, even the military judge implied
he did not find it had been “derelict or negligent” in its responsibilities.
   Turning to the continuance from 15 October 2019 to 9 March 2020, the 146-
day delay is certainly significant. However, whether it is “unreasonable” re-
quires some consideration of what the delay was for. On the surface, the delay
was requested by the Defense in order to secure the presence of LB, a witness
the Defense desired. In addition, the specific date of 9 March 2020 appears to
have been driven at least in part by trial defense counsel’s availability.
    Nevertheless, the military judge placed responsibility squarely on the Gov-
ernment’s “wholly inadequate” efforts to secure the presence of LB. It is true
the Government provided scant evidence of its pre-October 2019 efforts in that



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             United States v. Harrington, Misc. Dkt. No. 2020-02


regard. Moreover, in its response to the Defense’s motion to dismiss, the Gov-
ernment “freely acknowledge[d] that the second Defense continuance was
largely the result of the Government’s inability to secure a necessary witness.”
    Yet there is also little evidence that the Defense specifically requested LB’s
presence prior to its motion to compel on 11 October 2019. The Defense had
evidently relied on the fact that LB was on the Government’s list of anticipated
witnesses; however, the Government was under no obligation to call LB at trial
or to keep him on its witness list. Although the military judge repeatedly as-
serted in his rulings that this court’s opinion in Harrington I had “directed”
that LB’s testimony be admitted at the rehearing, this court’s opinion did not
require the admission of any evidence or the production of any witnesses. Ra-
ther, this court directed only that the findings and sentence of the first court-
martial be set aside due to an error, that the record be returned, and a rehear-
ing was authorized. Harrington I, unpub. op. at *22. Whether there would be
a rehearing, and what evidence would be admitted at it, of course depended on
subsequent decisions by the relevant authorities and upon the parties them-
selves.
    In summary, we are less certain than the military judge of the existence of
a facially unreasonable delay. Nevertheless, for purposes of our analysis we
will assume the military judge did not err in this respect, that there was suffi-
cient facially unreasonable delay to warrant an analysis of all the Barker fac-
tors, and that this factor weighs in Appellee’s favor.
   2. Reasons for Delay
    Any facially unreasonable delay between 4 February 2019 and 13 May 2019
must be attributed to the Government, as the processing of the case was en-
tirely in the Government’s hands. There is no indication that Appellee resisted
or obstructed the process of being returned to duty for trial. Similarly, as dis-
cussed above, although we find the Government’s actions less patently offen-
sive to the Sixth Amendment than the military judge evidently did, we assume
for purposes of our analysis that the Government also bore primary responsi-
bility for the delay from 15 October 2019 until 9 March 2020. Accordingly, we
weigh this factor moderately in Appellee’s favor.
   3. Demand for Speedy Trial
    The third factor is “[w]hether the appellant made a demand for a speedy
trial.” 

(citing 

) (additional cita-
tion omitted). As the Government conceded in its response to the defense mo-
tion to dismiss, Appellee included a demand for speedy trial with a discovery
request on 12 June 2019. Accordingly, we agree with the military judge’s as-
sessment that Appellee “met the minimum threshold,” and this factor weighs
in his favor, albeit “only very slightly.”


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             United States v. Harrington, Misc. Dkt. No. 2020-02


   4. Prejudice
    It is with respect to the final Barker factor that we find the military judge
erred. As an initial matter, we note that the burden to demonstrate the exist-
ence of prejudice rested with the Defense at trial. See R.C.M. 905(c)(2)(A);

. In addition, Appellee was not confined at any point,
and we agree with the military judge that Appellee has not demonstrated spe-
cific anxiety or concern distinguishable from that experienced by other ac-
cuseds awaiting trial. See 

–89. However, the military
judge’s conclusion that Appellee’s ability to defend himself at the rehearing
was impaired as a result of the delay was erroneous in two significant respects.
       a. Finding of “Fact” that Delay “Likely” Caused Loss of Evidence
    The first error is the military judge’s purported finding of fact that “if the
United States had proceeded expeditiously with bringing this case to a rehear-
ing, it is likely that at least some of the exculpatory evidence which the [Court
of Criminal Appeals] directed to be admitted at this hearing . . . would have
been available for [Appellee’s] use at this rehearing.” We question whether the
finding that something is “likely”—that is, a possibility—is a finding of “fact”—
that is, something that actually exists—by the military judge for purposes of
our review. See United States v. Cossio, 

, 257 (C.A.A.F. 2007) (“Mil-
itary judges must be careful to restrict findings of fact to things, events, deeds
or circumstances that ‘actually exist’ as distinguished from ‘legal effect, conse-
quences, or interpretation.’”). The evidence before the military judge simply
did not establish at what point between the first trial in November 2016 and
the motion hearing on 9 March 2020 either LB or TSgt KW lost their memories
of the events during the Jenga game to which they previously testified. To be
clear, the point is not that the military judge could not reach any conclusion
regarding the existence of prejudice based on the limited evidence before him;
our point is simply that we doubt that a finding that something was possible,
even “likely,” is a determination of “fact” which we are bound to review under
a clear error standard.
    Moreover, even assuming that a finding that something is “likely” is a find-
ing of fact, we conclude the military judge’s finding that “it is likely that at
least some” of the lost evidence might have been preserved had the Govern-
ment proceeded “expeditiously” is not supported by the record. With regard to
TSgt KW, the record indicates that in November 2016 she remembered the
January 2016 party and the Jenga game generally, and specifically remem-
bered Appellee took a shot from SSgt FC’s mouth. In June 2017, TSgt KW be-
gan experiencing symptoms of epilepsy. In June 2019, she was formally diag-
nosed with the disorder, a side effect of which can be a dramatic impairment
of long-term memory. On 9 March 2020, TSgt KW remembered “almost noth-



                                       15
             United States v. Harrington, Misc. Dkt. No. 2020-02


ing” about the party, and could not remember the Jenga game at all. For pur-
poses of analysis, even if we subtract the full 246 days the military judge refers
to in his ruling on reconsideration—which effectively assumes the convening
authority referred the case on the same day the record was returned to Nellis
AFB—the rehearing would have convened around 7 July 2019, after TSgt KW’s
epilepsy had set in and, in any event, more than two and a half years after her
previous testimony. We conclude any finding of fact that at some point between
7 July 2019 and 9 March 2020, and not earlier, it is “likely” TSgt KW lost the
specific memory of Appellee taking a shot from SSgt FC’s mouth is speculative
and unsupported by the record.
    Although the passage of time has had a less dramatic impact on LB’s
memory in general, our analysis is similar. In November 2016, LB testified
that during the Jenga game SSgt FC lowered her pants, and that Appellee took
shots from SSgt FC’s buttocks and between her breasts. On 9 March 2020, LB
still had some memory of the Jenga game, and remembered Appellee took a
shot from SSgt FC’s belly and vice versa, but he did not recall SSgt FC lowering
her pants or the shots from her buttocks and breasts. The record provides no
basis to conclude it is “likely” these memories were lost during the eight
months between July 2019 and March 2020. Rather, it is equally if not more
likely these memories were lost during the more than 31 months that elapsed
between the first trial in November 2016 and July 2019—and again, this es-
sentially assumes the case could have been referred as soon as it returned to
Nellis AFB, which is not necessarily what “orderly expedition” required under
the circumstances. See 

.
    The record does not support a finding of “fact” that memories were “likely”
lost as a result of the Government’s facially unreasonable delay. Moreover, our
review of the evidence indicates the Defense did not carry its burden to demon-
strate that the memories were lost as a result of the facially unreasonable de-
lay. See 

(citing Doggett v. United States, 

,
654 (1992)).
       b. Prejudice from LB’s and TSgt KW’s Lost Memories
   Equally significant, we find the military judge erred in his conclusion that
Appellee was actually prejudiced by the lost memories of LB and TSgt KW.
    At trial and on appeal, the Government contends that the record of the prior
testimony of TSgt KW and LB regarding the now-forgotten shots from SSgt
FC’s mouth, buttocks, and breasts, and the lowering of her pants, will be ad-
missible under Mil. R. Evid. 803(5) and Mil. R. Evid. 804(b)(1). Therefore, the
substance of the specific evidence that this court found in Harrington I had
been erroneously excluded from Appellee’s first trial will be available to the




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              United States v. Harrington, Misc. Dkt. No. 2020-02


Defense at the rehearing. The military judge did not deny that the prior testi-
mony would be admissible under Mil. R. Evid. 803(5). 15 However, he “refuse[d]
to require the Defense to use . . . [Mil. R. Evid.] 803(5) in order to mount their
defense of [Appellee].” He explained his reasoning as follows:
       While the witness’ [sic] former testimony may meet the defini-
       tion of recorded testimony in order to permit its admissibility,
       this Court will not require that the Defense rely nearly-exclu-
       sively upon this rule as the sole source of the very information
       which the [Court of Criminal Appeals] has directed should now
       be admissible, while simultaneously leaving the Government
       free to attempt to prove its own case with live witnesses.
       . . . [T]his Court specifically notes that this Accused attempted
       to introduce substantial amounts of [Mil. R. Evid.] 412 evidence
       at his 2016 trial in an effort to show his own innocence. The Gov-
       ernment opposed that effort, and was successful in having the
       potentially exculpatory evidence kept from the members. This
       Court will require the Government to live with its own success.
       [ ] This is because the Government’s success was error, as the
       Air Force Court of Criminal Appeals has clearly instructed us
       through its unpublished opinion that authorized the instant re-
       hearing.
       [ ] Now, the Government persists in attempting to further bene-
       fit from its own erroneous success, to the specific detriment of
       [Appellee] and despite [Appellee’s] best efforts to the contrary at
       his first trial. If the Government were to prevail on the motion
       now before this Court, the outcome would be that [Appellee]
       would be forever foreclosed from presenting the exact evidence
       which (a) he was capable of presenting at his first trial, (b) he
       was prevented by the Government from presenting, and (c) the

15The parties and military judge have devoted considerable attention to whether the
prior testimony would also be admissible under Mil. R. Evid. 804(b)(1). In particular,
the Government challenges the military judge’s conclusion that the original trial de-
fense team had an insufficiently similar motive to develop TSgt KW’s and LB’s testi-
mony during the Mil. R. Evid. 412 motion hearing, as compared to the current defense
team’s intended use of the testimony on the merits at the rehearing. See Mil. R. Evid.
804(b)(1); United States v. Hutchins, No. 200800393, 2018 CCA LEXIS 31, at *51 (N.M.
Ct. Crim. App. 29 Jan. 2018) (unpub. op.) (quoting United States v. DiNapoli, 

, 914–15 (2d Cir. 1993)). However, the military judge apparently concluded the ev-
idence would be admissible under Mil. R. Evid. 803(5), and we agree, which moots the
question of admissibility under Mil. R. Evid. 804(b)(1). Accordingly, we need not re-
solve this question.


                                         17
              United States v. Harrington, Misc. Dkt. No. 2020-02


       Air Force Court of Criminal Appeals has found to be so im-
       portant that it set aside his resulting conviction.
       [A]llowing this case to proceed against [Appellee], in the absence
       of any wrongdoing on the part of the Defense, would compound
       the Government’s error even further. Moreover, it would specif-
       ically violate [Appellee’s] Sixth Amendment rights and would
       permanently skew the fairness of this entire proceeding.
    We find the military judge’s reasoning problematic in several respects.
First, it appears the military judge implicitly considered live testimony would
be superior to recorded prior testimony, but he did not explain why this is so,
and we are not convinced this is necessarily the case. The record of the prior
motion testimony, which is the very evidence that prompted this court to set
aside the original conviction, remains available to the Defense. Neither Appel-
lee nor the military judge has identified any piece of relevant evidence of which
the substance has been lost to the Defense as a result of the delay.
   Second, as discussed above, this court’s opinion in Harrington I did not
mandate that any particular evidence must be admitted at a rehearing, or that
Appellee was necessarily entitled to live testimony. Harrington I merely deter-
mined that Appellee had been prejudiced by the erroneous exclusion of evi-
dence in the context of that particular trial.
    Third, the military judge appears to lay at least some degree of responsi-
bility for the erroneous exclusion of evidence at the first trial on the Govern-
ment. This is unwarranted. Regardless of whether the Government opposed
the introduction of the evidence, SSgt FC opposed it through her SVC, and the
military judge was obliged to conduct a hearing and make an independent de-
termination of admissibility. See Mil. R. Evid. 412(c)(2). The prior error was
made by the previous military judge, not by the Government. We see nothing
inappropriate in the Government having litigated the Mil. R. Evid. 412(c)(2)
motion in good faith, such that equity somehow now favors Appellee as a result.
Nor do we perceive that the Government is “persist[ing]” in pursuing any im-
proper benefit, where it fully agrees with the admissibility of the prior testi-
mony, and has expressed its willingness to stipulate to the prior testimony as
fact. 16
    Fourth, in assessing the prejudice to Appellee’s defense, it is appropriate to
consider that the prior testimony of TSgt KW and LB does not stand alone. The
prior testimony is part of a larger body of evidence available to the Defense to


16Of course, this is not to suggest the Defense was under any obligation whatsoever to
agree to such a stipulation. The point is simply that the Government’s offer is some
evidence that it was not seeking to capitalize on the previous error.


                                         18
              United States v. Harrington, Misc. Dkt. No. 2020-02


portray what happened between SSgt FC and Appellee during the Jenga game.
In addition to the prior testimony regarding shots from the mouth, buttocks,
and breasts, and SSgt FC lowering her pants, as of 9 March 2020, LB was able
to testify Appellee took a shot from SSgt FC’s belly, and SSgt FC from Appel-
lee’s. In addition, as of 9 March 2020, SSgt SC could testify that he saw Appel-
lee take a shot from SSgt FC’s mouth, buttocks, and “stomach.” It is true that
the military judge found SSgt SC’s reliability as a witness to be “low,” based
on his in-court observations; but SSgt SC’s testimony need not stand alone. In
combination, the prior testimony of TSgt KW and LB, LB’s testimony at the
rehearing, and SSgt SC’s testimony at the rehearing offer a fairly clear por-
trayal of the nature of the interactions between SSgt FC and Appellee during
the Jenga game, a portrayal that goes beyond the evidence this court found
relevant and admissible in Harrington I.
   For the reasons stated above, we find the military judge erred in concluding
that the Defense demonstrated prejudice.
   5. Summary of Barker Factors
    In summary, for purposes of our analysis we assume the existence of a fa-
cially unreasonable delay and we weigh the length of delay in Appellee’s favor;
we weigh the reasons for delay moderately in Appellee’s favor; and we weigh
the demand for speedy trial very slightly in Appellee’s favor. However, for the
reasons stated above, we do not find prejudice resulting from the delay because
(1) Appellee has failed to demonstrate TSgt KW and LB lost their memories
during the period of facially unreasonable delay, and (2) Appellee has failed to
demonstrate the lost memories of TSgt KW and LB have actually prejudiced
his defense at trial, in light of the availability of their prior testimony and other
testimony that remains available. Moreover, weighing the factors together, we
consider the absence of prejudice to outweigh the remaining factors that, taken
together, only moderately favor Appellee. Accordingly, we find the military
judge erred in granting the defense motion to dismiss.

                                III. CONCLUSION
    The appeal of the United States under Article 62, UCMJ, 10 U.S.C. § 862,
is GRANTED. The military judge’s ruling to grant the defense motion to dis-
miss for violation of Appellee’s right to speedy trial is REVERSED.




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            United States v. Harrington, Misc. Dkt. No. 2020-02


   The record is returned to The Judge Advocate General for remand to the
military judge for action consistent with this opinion.


               FOR THE COURT



               CAROL K. JOYCE
               Clerk of the Court




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