In a published decision in United States v. Atkinson, __ M.J. __, No. 201400284 (N-M. Ct. Crim. App. Mar. 26, 2015) (link to slip op.), the NMCCA holds that the appellant was not entitled to credit for pre-trial confinement in a civilian facility, holding in part that “the court-martial lacked jurisdiction to address the appellant’s request for administrative credit based on R.C.M. 305(j)(2) and (k).” Slip op. at 7.

The appellant was placed into the civilian facility after he was apprehended (on a deserter warrant) by military authorities (NCIS) operating with local authorities. The facility was in Wilmington, NC, just a few hours drive away from the appellant’s unit at Camp Lejeune, NC. However, the Government left the appellant in that facility for 62 days, without any R.C.M. 305 review of his confinement, “despite his unit knowing he was there and available for pick up.” Slip op. at 2. Yet when the appellant sought judicial relief for this confinement at trial, his request was denied on jurisdictional grounds.

Disclaimer: I was one of this appellant’s detailed military trial defense counsel, and I litigated this issue at the trial stage.

The appellant pleaded guilty, at a special court-martial composed of a military judge alone, to one specification of unauthorized absence and one specification larceny of government property in excess of $500.00, in violation of Articles 86 and 121. He was sentenced to confinement for six months, a $501.00 fine, and a bad-conduct discharge.

The charges at the court-martial related to receipt of a housing allowance in connection with a so-called “sham marriage,” and an unauthorized absence that occurred after the appellant was released from the civilian confinement facility. The CCA details the procedural timeline in its opinion. See slip op. at 2-3. That timeline includes:

  • May 15, 2012: Appellant charged with offenses related to the sham marriage.
  • July 2, 2012: Appellant absented himself.
  • July 12, 2012: Charges dismissed.
  • August 15, 2012: Deserter warrant issued.
  • May 27, 2013: Appellant apprehended and confined in civilian facility.
  • July 27, 2013: Appellant returned to unit and released from all restraints.
  • August 13, 2013: Appellant accepted nonjudicial punishment for the 2012-2013 absence and was sentenced to restriction for 60 days and forfeiture of half his pay for two months (with the forfeitures suspended).
  • February 2014: Appellant absented himself.
  • March 21, 2014: Appellant’s absence terminated by apprehension.
  • April 10, 2014: Charges preferred.
  • April 15, 2014: Additional charges preferred.
  • May 5, 2014: Appellant pleaded guilty at a special court-martial.

At the court-martial, the matter of entitlement to credit for the pretrial confinement in the civilian facility was litigated. Specifically:

At trial, the defense sought additional confinement credit based on the appellant’s confinement at the NHDF, offering four bases: first, that the appellant was entitled to day-for-day credit for pretrial confinement in the hands of civil authorities, citing, generally, United States v. Allen, 17 M.J. 126 (C.M.A. 1984); second, that the failure to review his confinement under R.C.M. 305 merited an additional 60 days’ credit; third, that the appellant’s confinement in immediate association with foreign nationals violated Article 12, UCMJ, and required two-for-one credit; and, fourth, that the confinement constituted unlawful pretrial punishment, and its unnecessarily rigorous nature warranted ten-for-one credit.

After hearing argument on the motions, the military judge issued extensive findings of fact and conclusions of law. He ultimately found no connection between the appellant’s confinement at the NHDF and the current court-martial and, therefore, denied the motion for additional confinement credit. Despite this, the military judge expressed concern over the Government’s lack of explanation why the appellant languished in a civilian jail for two months, stating he would “consider the circumstances of this confinement, along with the lackluster forward progress of this case towards adjudication, along with the other service history evidence in [his] sentencing deliberation.”

Slip op. at 3. The CCA affirms the military judge, holding that:

As the holding in Allen rested on its reading of DoDI 1325.4, and the version of that instruction in effect at the time of the appellant’s trial does not require (or even allow) credit for pretrial confinement at non-military facilities for unrelated offenses, we find Allen inapplicable in this case.

slip op. at 5, and that:

Charges concerning the 2 July 2012 to 27 May 2013 UA – for which the appellant was confined at the NHDF – were not referred to trial. Thus, the court-martial lacked jurisdiction to address the appellant’s request for administrative credit based on R.C.M. 305(j)(2) and (k).

slip op. at 7 (emphasis added).

I think the CCA’s jurisdictional conclusion is astonishing, as it finds that:

No matter how egregious the Government’s mishandling of the appellant’s confinement at the NHDF, its lack of connection to the court-martial to which the military judge was detailed left the military judge with no authority to grant a remedy.

Slip op. at 7. Broadly applied, I believe that this conclusion endorses a dangerous proposition; it allows the Government to use an intervening allegation to totally deprive an accused of the opportunity for judicial relief for plainly unlawful pretrial punishment. The Government can do this by tying the unlawful punishment to a new allegation, referring the new allegation to a separate court-martial, scheduling that court-martial to occur after the court-martial for the preexisting allegations, and then later dismissing the new allegation without trial. Under the CCA’s reasoning, no court would have jurisdiction to grant credit for the unlawful punishment under such circumstances.

15 Responses to “The NMCCA finds that a court-martial lacked jurisdiction to order credit for unlawful pretrial punishment”

  1. stewie says:

    But what about the reverse? Client is charged, put in PTC, unlawful PT punishment occurs, charges are dismissed.  Some time passes, let’s say a year. Client gets into new trouble, that case goes to trial, client wants PT punishment credit for the prior issue.  No jurisdiction there?
     
    I think your hypo is highly unlikely to happen.  If it did, and it was clear the government gaming the system like that, not only might the court make an exception, but I think a whole lot of people, including myself, would be looking for ethical sanctions for the attorneys responsible.

  2. Zachary D Spilman says:

    I think my hypo is exactly what happened in this case, stewie. And I’m pretty sure that I said as much at trial.

    And if the Government unilaterally dismisses charges (perhaps because they were discovered to be baseless) after unlawfully punishing a service member in advance of trial, then I do believe that the service member should be able to obtain judicial relief for that unlawful punishment at a later proceeding involving unrelated offenses. 

  3. stewie says:

    I’m sure you did, I’m just skeptical that the charges were filed with zero interest in prosecution but solely because the government thought this result would hold and they’d be scot-free from any responsibility for issues in confinement, which is what your hypo set up. 
     
    As for your second point, that may be fair, but then the law needs to be changed to give that ability to the system to address.  I think though that other case law concerning PTC, such as restarting the clock (in various ways) isn’t consistent with that point. 

  4. Me says:

    Stewie, you have to remember that here on CAAFLog, government counsel (even when fellow JAs and Marine officers) are always presumed to operate in bad faith.  There is never an alternative explanation and, as such, CCAs should rule for the accused, even contrary to a DoD Instruction, to right the wrong that is a government lawyer.
    Maybe the better way, as Stewie, suggests, is to change the law to give the system the ability to address the alleged (are we allowed to say alleged when referencing misconduct by government counsel or is that deference only applied to the accused?) injustice.

  5. k fischer says:

    Zach, 
     
    Seems that if Atkinson wanted to argue that he was illegally confined due to the desertion charge he pleaded guilty to at the Article 15, then he could have demanded a Court-martial.  Instead the charges were disposed of and the Government did not revive the Article 15 charges on the court-martial charge sheet.
     
    But, I agree that the Government saw the issue with this Marine staying in civilian confinement for 62 days, which is probably why he was offered a FG15 instead of a Special Court-martial. Did your client still have to do the 60 days restriction, or did the Command give him credit against his 62 days of civilian confinement? 

  6. Zachary D Spilman says:

    Of course, nothing in my post (or even in this case) relates to the conduct of the Government’s counsel or implies any sort of bad faith. I just believe that the jurisdictional argument is wrong and dangerous.

    In fact, since the trial counsel doesn’t prefer the charge, see R.C.M. 502(d)(4)(A), doesn’t make the pretrial confinement decision, see, generally, R.C.M. 304, and doesn’t make decisions regarding the disposition of charges, see R.C.M. 401(a), the actions of “government counsel” have nothing to do with the dangerous proposition (particularly since, as I recently wrote, it is not unethical for an attorney to make a bad argument). 

    But why let that get in the way of your narrative, right Me? Better to make a pseudonymous comment. Way to show moral courage.

     

  7. k fischer says:

    Me, 
     
    If its any consolation, I don’t see any Government misconduct in this case.  I see a Marine who deserted, got thrown into pretrial confinement where the Government screwed the pooch by not picking him up in a timely manner, so they gave him a gift FG Article 15, which he could have turned down, but did not.
     
    Six months later, he proceeded to go UA again that was terminated by apprehension.  I don’t see why he should get credit for an uncharged offense that was dealt with by NJP, unless he actually had to serve the restriction.  But, still that is subject to an Article 15 appeal, not at a subsequent court-martial for subsequent unrelated misconduct.  
     
    I don’t see that as Government misconduct, but then again, I didn’t see where Zach accused the Government of malice.  I don’t know to whom you refer regarding presumptions on CAAFLOG, but…..it ain’t me, and I ain’t no Senator’s son.  

  8. stewie says:

    Zach, you typed:
     
    Broadly applied, I believe that this conclusion endorses a dangerous proposition; it allows the Government to use an intervening allegation to totally deprive an accused of the opportunity for judicial relief for plainly unlawful pretrial punishment. The Government can do this by tying the unlawful punishment to a new allegation, referring the new allegation to a separate court-martial, scheduling that court-martial to occur after the court-martial for the preexisting allegations, and then later dismissing the new allegation without trial.
     
    I thought that was just a hypo, and said how I thought it unlikely, but then you replied effectively it wasn’t just a hypo.  That hypo/not-a-hypo certainly appears to require bad faith on government counsel (whether that is trial counsel or SJA or in-between) in my book.  At least that’s how it comes across.  And I think bad faith is probably required under the current rules.
    While I agree me’s tone was unnecessary and overly snarky, I admit it seemed to me you were indicating bad faith as well.
     

  9. stewie says:

    And in re-reading that, the juxtaposition of so many “mes” is confusing and makes “me” or me sound like Tarzan.

  10. Tami a/k/a Princess Leia says:

    Did he serve any of the restriction in the Article 15?  If so, that’s the problem.  He should’ve gotten credit for the restriction (then the foreitures if anything left over), based on having to sit in jail for 2 months.  Definitely worthy of an Article 138, UCMJ complaint.  I also agree w/ K Fischer, this is appropriate for NJP appeal, also BCMR application, but not appropriate for C-M confinement credit for a completely different offense.  I’m glad the MJ took it into consideration for sentencing though.

  11. Zachary D Spilman says:

    He served all of the restriction.

  12. Dwight Sullivan says:

    [Standard Disclaimer:  This comment is offered solely in my individual capacity; it shouldn’t be imputed to DoD or anyone or anything else.] 
     
    Without expressing any opinion on the ultimate resolution of the issue, there may be an interesting interplay between NMCCA’s decision in Atkinson and CAAF’s summary dispositions in United States v. Owens and United States v. Gogue.
     
    In Gogue, CAAF granted review of one issue and specified a second.  66 M.J. 287 (C.A.A.F. 2008) (mem.).  The granted issue was “WHETHER, PURSUANT TO 18 U.S.C.§ 3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED BY A COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES UNRELATED TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE.”  The specified issue was:  “WHETHER, UNDER UNITED STATES v. WILSON, 503 U.S. 329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY PRETRIAL CONFINEMENT CREDIT.” 
     
    In Owens, CAAF granted review of an issue similar to the granted issue in GogueUnited States v. Owens, 66 M.J. 288 (C.A.A.F. 2008) (mem.).
     
    18 U.S.C. § 3585 provides, in relevant part, that a “defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences– (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.”
     
    Following the grant of review in Gogue, the parties agreed that the accused was entitled to the credit.  United States v. Gogue, 67 M.J. 169 (C.A.A.F. 2008) (mem.).  CAAF remanded the case to ACCA “to provide meaningful relief.”  Id.
     
    In Owens, CAAF ruled:  “[T]he parties now agree that Appellant is entitled to confinement credit for his periods of civilian confinement from May 13 to June 21, 2006, and from September 8 to November 9, 2006. The Court adopts the position of the parties.”  United States v. Owens, 67 M.J. 178 (C.A.A.F. 2008) (mem.).
     
    If I understand the facts of Atkinson correctly, 18 U.S.C. § 3585 would not help the accused because Atkinson was arrested for the offense leading to his civilian confinement before the commission of the offense for which he was ultimately sentenced by court-martial.  Nevertheless, is CAAF’s approach in those cases inconsistent with NMCCA’s reasoning in Atkinson?  NMCCA states, “The misconduct that resulted in the appellant’s stay at the NHDF was adjudicated during a period in which no other charges were pending, and was in no way related to the charges before the court-martial.  Charges concerning the 2 July 2012 to 27 May 2013 UA — for which the appellant was confined at the NHDF — were not referred to trial.  Thus, the court-martial lacked jurisdiction to address the appellant’s request for administrative credit based on R.C.M. 305(j)(2) and (k).”  Atkinson, slip op. at 7.  Yet in Owens and Gogue, it is also true that the offenses for which the accuseds ultimately received pretrial confinement credit were not related to the charges before the court-martial and were not referred to trial.  Additionally, under 18 U.S.C. § 3585, the key question isn’t whether charges were pending at the time of the unrelated confinement, but whether that confinement occurred after the date of the offense of which the accused was ultimately convicted.  The accused need not have actually been charged with that offense at the time of the confinement for the unrelated offense for 18 U.S.C. § 3585 to kick in.  Accordingly, I am having difficulty reconciling Atkinson‘s reasoning with the controlling precedent of Owens and Gogue

  13. Zachary D Spilman says:

    Atkinson was arrested for the offense leading to his civilian confinement before the commission of the offense for which he was ultimately sentenced by court-martial.

    Negative. There were two convictions at the court-martial. One for a continuing larceny under a “sham marriage” theory (dating back to 2009), and the other for a UA from shortly before the court-martial. See slip op. at 2. 

    As also discussed on page 2 of the opinion, the confinement IHCA was due to an absence from 2012-2013 that occurred after the larceny charges – involving the same 2009 “sham marriage” – were preferred for the first time (in 2012).

  14. Dwight Sullivan says:

    [Standard Disclaimer:  This comment is offered solely in my individual capacity; it shouldn’t be imputed to DoD or anyone or anything else.] 
     
    Zack, thanks for the clarification.  Again without offering any opinion as to how the case should ultimately be resolved, that appears to make the contrast between NMCCA’s approach and Owens and Gogue even starker. 

  15. Tami (a/k/a Princess Leia) says:

    Zach,
     
    Based on what Dwight is saying, it seems like a good faith argument can be made that 18 USC 3585 DOES apply, because the larceny started in 2009, based on the sham marriage, which is prior to the UA that triggered the confinement.  Confinement occurring “after the date of the offense” for which there’s a conviction could refer to the completed date, or in the case of a continuing offense, after the start date.  Also, while I understand the NMCCA agreed with the MJ’s denial of the motion, that’s not to say the court didn’t have “jurisdiction” to consider the motion.  Since it was OK for the MJ to consider the confinement as a mitigating factor for sentencing, then the court had “jurisdiction.”  Sounds like a great case for CAAF to take up, and since it seems to be an error of law, the review is de novo, and the chances of winning are better.