The NMCCA finds that a court-martial lacked jurisdiction to order credit for unlawful pretrial punishment
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.