CAAF will hear oral argument in United States v. Mead, No 13-0459/AR (CAAFlog case page), on Wednesday, October 9, 2013, at 9:30 a.m. Appellant was tried by a general court-martial for an offense after receiving nonjudicial punishment under Article 15 for the same offense. CAAF will review the application of credit under United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), a case in which the Court of Military Appeals (CAAF’s predecessor) considered the otherwise rare situation where a service member is convicted and sentenced by a court-martial for an offense after he has already been punished nonjudicially for the same offense. In Pierce the CMA determined:
It does not follow that a servicemember can be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a court-martial for the same conduct. Either consequence would violate the most obvious, fundamental notions of due process of law. Thus, in these rare cases, an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe. Furthermore, the nonjudicial punishment may not be used for any purpose at trial, such as impeachment (even of an accused who asserts he had no prior misconduct); to show that an accused has a bad service record; or any other evidentiary purpose, e.g., Mil.R.Evid. 404(b), Manual, supra. Under these circumstances, the nonjudicial punishment simply has no legal relevance to the court-martial.
Pierce, 27 M.J. at 369 (emphasis in original). Appellant Mead was convicted, pursuant to his pleas of guilty entered in accordance with a pretrial agreement, by a general court-martial composed of a military judge alone, of drunken operation of a vehicle, wrongful use of amphetamine, and involuntary manslaughter by operating a motor vehicle in a culpably negligent manner, in violation of Articles 111, 112a, and 119, UCMJ. But before the court-martial he received nonjudicial punishment pursuant to Article 15, UCMJ, for the same wrongful use of amphetamine.
When the military judge announced the sentence at the court-martial, he declared that:
When arriving at the adjudged sentence in this case, I took into account the non-judicial punishment, or NJP, the accused has already received under Article 15 of the Uniform Code of Military Justice. As a result of the NJP that was imposed by his battalion commander, Lieutenant Colonel [BH], for the wrongful use of amphetamine that he was charged with and found guilty of in the Specification of Charge II. If the accused had not received prior NJP for the offense listed in the Specification of Charge II, I would have adjudged an additional 2 months of confinement, in addition to what I just announced.
United States v. Mead, 72 M.J. 515, 517 (A.Ct.Crim.App. 2013). Appellant was sentenced to confinement for 38 months, total forfeitures, and a bad-conduct discharge. Pursuant to the pretrial agreement, the convening authority disapproved all confinement in excess of 24 months. Because of these terms of the pretrial agreement, the judge’s two-month reduction in the adjudged sentence had no effect on the sentence ultimately ordered executed.
On automatic appeal to the Army CCA, Appellant complained that the credit applied by the military judge “was both illusory and improperly calculated.” 72 M.J. at 516. His complaint was two-fold. First, he complained that he received no meaningful credit at all (because the 2-month reduction in confinement announced by the judge had no effect after application of the pretrial agreement). And second, he complained that he received no credit for the pay he lost as a result of his reduction in rank from the nonjudicial punishment (put differently: the prior nonjudicial punishment of reduction had the consequence of reduced pay to Appellant, but when he was punished by the court-martial for the same underlying misconduct, he received only credit for the prior reduction itself and not for the accompanying reduction in pay).
The CCA rejected Appellant’s arguments, reaffirming a prior holding that “where a military judge awards credit for non-judicial punishment on the adjudged sentence and the punishments still exceeds the limitation of punishments in a pretrial agreement, the military judge has already satisfied Pierce and there is no duty for the convening authority to again award credit,” 72 M.J. 518, and also finding “no legal obligation to provide credit” for the reduced pay as a result of reduced rank after the nonjudicial punishment, 72 M.J. 519. CAAF then granted review of the following two-part issue questioning these determinations:
Whether the Army court incorrectly ruled that Pierce credit may be applied against the adjudged sentence where this results in no relief to Appellant and whether the Army court incorrectly ruled that pay lost as a result of prior reduction under Article 15, UCMJ, need not to be restored to Appellant.
The Appellant’s brief discusses significant precedents involving the computation and application of sentence credits, beginning with Pierce in 1989, establishing the credit, then moving to United States v. Edwards, 42 M.J. 381 (C.A.A.F. 1995), where CAAF held that where the defense so requests, the military judge may apply the credit against the adjudged sentence (instead of the convening authority applying it against the approved sentence), and ending with United States v. Gammons, 51 M.J. 169 (C.A.A.F 1999) (slip opinion), in which then-Judge Effron wrote a lengthy unanimous opinion of the court discussing the relationship between nonjudicial punishment and court-martial, the application of credit against a court-martial sentence for prior nonjudicial punishment, and the myriad ways the prior punishment may be brought to the attention of the court-martial and the convening authority. In Gammons, Judge Effron explained:
The accused, as gatekeeper, may choose whether to introduce the record of a prior NJP for the same act or omission covered by a court-martial finding and may also choose the forum for making such a presentation. The accused may:
(1) introduce the record of the prior NJP for consideration by the court-martial during sentencing;
(2) introduce the record of the prior NJP during an Article 39(a), UCMJ, 10 USC § 839(a), session for purposes of adjudicating credit to be applied against the adjudged sentence;
(3) defer introduction of the record of the prior NJP during trial and present it to the convening authority prior to action on the sentence; or
(4) choose not to bring the record of the prior NJP to the attention of any sentencing authority. In that regard, we note that an accused may have sound reasons for not presenting the record of the prior NJP to any sentencing authority. Absent a collateral issue, such as ineffective assistance of counsel, failure to raise the issue of mitigation based upon the record of a previous NJP for the same offense prior to action by the convening authority waives an allegation that the court-martial or convening authority erred by failing to consider the record of the prior NJP.
Gammons, 51 M.J. at 183 (formatting added). A major factual issue in this case is deciding who brought the prior punishment to the attention of the military judge, and why; questions to which I will return in a moment. But Appellant’s brief discusses two other important cases about sentencing credits: Rock and Spaustat.
In United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999) (slip opinion), then-Judge Cox discussed the various types of confinement credits available at courts-martial and noted that CAAF had not “discuss[ed] the point from which the sentence is to be reduced by the credit.” Rock, 52 M.J. at 156. But “[t]he answer, however, is quite simple . . . credit against confinement awarded by a military judge always applies against the sentence adjudged—unless the pretrial agreement itself dictates otherwise.” Id. at 156-157 (emphasis in original). However, where there is a pretrial agreement that limits confinement to less than that adjudged and “portions of that confinement have already been served, actually or constructively, the credit applies against the agreement, otherwise the accused’s sentence will exceed the maximum lawful limit.” Id. at 157.
Three years later, in United States v. Spaustat, 57 M.J. 256, 263-64 (C.A.A.F. 2002) (slip opinion), CAAF revisited this question, acknowledged confusion post-Rock, and made things simpler: “in order to avoid further confusion and to ensure meaningful relief in all future cases after the date of this decision, this Court will require the convening authority to direct application of all confinement credits for violations of Article 13 or RCM 305 and all Allen credit against the approved sentence.” Spaustat, 57 M.J. at 263-64. Appellant in this case wants to add Pierce credit to this list, arguing that:
There is no reason this Court should require military judges to apply credit for Article 13, UCMJ, violations against the approved sentence, yet allow them to apply Pierce credit against the adjudged sentence. These credits all result from the action of the government to deliberately place a soldier in pretrial confinement, to deliberately violate Article 13, UCMJ, deliberately restrict him, or enact some other type of punishment. This Court should require that Pierce credit be applied against the approved sentence because Pierce credit also results from the deliberate action of a convening authority to punish a soldier twice.
App. Br. at 12. But there is still the Gammons question of who brought this to the judge’s attention, and why. The Government’s brief addresses this potentially dispositive, fact-specific question as follows:
Appellant, as the gatekeeper to his prior NJP, elected to reveal it to the court-martial for consideration on sentencing. First, appellant invited his prior NJP into his court-martial through his stipulation of fact. Appellant voluntarily entered into the stipulation of fact believing that it was in his best interest to do so. He included his prior NJP and agreed that the contents of the stipulation were admissible into evidence against  [him] for findings and sentencing on all charged offenses.
Second, appellant did not object when the military judge explicitly informed him that he would consider using the stipulation of fact to determine an appropriate sentence.
Gov’t Br. at 8-9. Yet Appellant’s position is that these facts don’t mean that he actually wanted the judge to consider the prior punishment:
Although the trial defense counsel here argued for mitigation of PVT Mead’s sentence in light of the prior nonjudicial punishment, he did not specifically request Pierce credit from the military judge.
App. Br. at 7. That’s a stretch, and I predict that the question of waiver will be an early topic during the oral argument.
But even if waiver isn’t an issue, whether Pierce credit should be applied to only the approved sentence is still a fact-susceptible question. Consider the deal in this case: the excess confinement wasn’t merely suspended (the normal practice) but was instead disapproved outright. Was that in recognition of the prior punishment? Was the prior punishment a consideration in establishing the 24-month cap? Presumably prior punishments will always be a consideration in pretrial negotiations, so a rule applying credit to only the approved sentence has the potential to give an accused multiple bites of the Pierce credit apple. If Appellant’s argument prevails, then a savvy defense counsel could exploit prior nonjudicial punishment in pre-trial negotiations, at trial (for nullification, ethical concerns aside for the moment), during presentencing, in clemency, and then still see the credit applied to the approved sentence.
These considerations make it unlikely CAAF will upset well-settled law to change how such credit is applied (particularly in this case where waiver is a significant issue). These considerations also make the second part of the question before the court – the part addressing whether Appellant should have received credit in the court-martial sentence for the pay he lost as a result of his reduction at the nonjudicial punishment – stand out as something that makes a nice question on its own.
The Government sees the lower pay following nonjudicial reduction as a “collateral consequence” of that reduction not amenable to credit. Gov’t Br. passim. But Appellant makes a strong case that “[u]nlike former jeopardy credit, which is not the result of a deliberate decision by the convening authority, Pierce credit is the result of a considered decision to punish an accused twice.” App. Br. at 15. And considering that this is something of an issue of first-impression, Appellant can make a strong argument that he is still entitled to relief even if CAAF finds that he waived the application issue by introducing the prior punishment in order to get credit from the military judge, on the basis that the military judge miscalculated the credit to be applied.
If CAAF takes this route, finding that Appellant introduced the prior punishment and applying Gammons to affirm, but also finding that Appellant should have received credit for the reduced pay, and reversing, CAAF will both affirm and reverse on the same issue.
Scoring that in next year’s End o’ Term Stats will be a problem…