United States v. Rosario, NMCCA No. 202400297 (Dec. 19, 2025)

1. Charges and Sentence

Charge and Specification

• Appellant, Private First Class Avery L. Rosario, U.S. Marine Corps, pleaded guilty to:
  • Breach of restriction, in violation of Article 87b, Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 887b).

Sentence

• The military judge at special court-martial sentenced Appellant (9 April 2024, Camp Pendleton, CA) to:
  • Reduction to E-1,
  • Confinement for 30 days, and
  • Forfeiture of $1,000.00 per month for one month.
• Appellant received 247 days of pretrial confinement credit.

Additional Procedural Context

• Originally, Appellant faced more serious charges (three specifications of child sexual assault in violation of Article 120b, UCMJ), which were withdrawn from the general court-martial under a plea agreement. Those charges were dismissed without prejudice, to ripen to prejudice upon appellate affirmance.

2. Issue Presented

Single Assignment of Error

• Whether the findings and sentence should be dismissed due to an alleged violation of the speedy trial provision in Article 10, UCMJ (10 U.S.C. § 810) arising from Appellant’s 247 days of pretrial confinement.

3. Analysis of the Opinion

Standard of Review

• De novo review of a military judge’s ruling on an Article 10 motion; factual findings are reviewed for clear error.

Preservation of the Issue

• Although Appellant pleaded guilty to the breach of restriction charge, the Court held that the previously litigated Article 10 motion survived the plea under unique circumstances because the military judge permitted the defense to “adopt” the earlier motion and the plea colloquy expressly acknowledged that the motion was not waivable.

Speedy Trial Analysis

The NMCCA applied the Barker v. Wingo four-factor balancing test (U.S. Supreme Court precedent) to evaluate whether there was unreasonable delay under Article 10:

1. Length of Delay
   • 247 days from pretrial confinement to trial. Although long for a simple breach of restriction, the delay was tied to the investigation and prosecution of the more serious charges initially pending. The court agreed with the military judge that the Government demonstrated reasonable diligence and this factor favored the Government.
2. Reasons for Delay
   • Active investigation and pursuit of more serious child sexual assault charges accounted for most of the delay; only after collapse of that prosecution was the restriction charge quickly resolved. This factor was neutral or slightly favored the Government.
3. Demand for Speedy Trial
   • Appellant did not demand a speedy trial on the breach of restriction; defense and government proposed differing compatible trial dates. This factor favored the Government.
4. Prejudice to Appellant
   • Prejudice was claimed in terms of confinement anxiety, difficulties communicating with counsel, command visits, uniform issues, and treatment by other prisoners. The court found these allegations insufficient to establish the level of prejudice required.

Conclusion

• The NMCCA concluded that no prejudicial error under Article 10 occurred. The findings and sentence were affirmed.

4. Primary Law Used

Promoting Cave & Freeburg Expertise

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