CAAF decided the certified Air Force case of United States v. Katso, 77 M.J. 247, No.17-0326/AF (CAAFlog case page) (link to slip op.) on Monday, March 12, 2018. Concluding that the Air Force CCA was wrong to apply the pretrial confinement review procedures of Rule for Courts-Martial 305 to Katso’s continued post-trial confinement while appellate review was underway, CAAF reverses the CCA’s award of 365 days of confinement credit.

Judge Ryan writes for a unanimous court.

Almost three years ago, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF reversed the Air Force CCA’s opinion that held that expert testimony violated Airman Basic (E-1) Katso’s constitutional right to confrontation. CAAF;s 2015 decision was the product of the Judge Advocate General of the Air Force certifying the case under Article 67(a)(2), and its decision reinstated Katso’s convictions of aggravated sexual assault, burglary, and unlawful entry, and the sentence of confinement for ten years, total forfeitures, and a dishonorable discharge.

Katso remained in confinement during that review. A year after the certification, however, Katso requested review of his confinement. A hearing was conducted and Katso was retained in confinement pending CAAF’s decision. Then, when CAAF returned the case to the Air Force CCA, the CCA found that Katso was entitled to credit for that year during which he was held without a hearing (despite having not requested a hearing), because that’s the remedy provided by R.C.M. 305(k) for the failure to conduct such a hearing for pretrial confinement.

The Judge Advocate General then certified the case again, with three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

CAAF answers all three questions favorably for the Government, with Judge Ryan explaining that “the overarching problem with the AFCCA’s approach to this case is that, without any case law, or any rule-based or statutory authority, it imposed the entirety of R.C.M. 305 procedures and penalties, crafted for pretrial confinement, on the Government in a completely different context.” Slip op. at 5 (emphasis in original).

CAAF finds error (and answers the first two certified questions in the affirmative) somewhat summarily:

[I]nterposing the rule-based seven-day hearing requirement from R.C.M. 305(i)(2) in this case, which resulted in rule-based day-for-day credit under R.C.M. 305(j)(2) and R.C.M. 305(k) for failure to comply with procedures that did not apply to Appellee’s situation, was error.

Slip op. at 5. Put differently, R.C.M. 305 simply doesn’t apply to the situation presented in this case.

But the Air Force court also relied on CAAF’s decisions in Moore v. Akins, 30 M.J. 249 (C.M.A. 1990), and United States v. Miller, 47 M.J. 352, 362 (C.A.A.F. 1997). In Moore the court held that an appellant must be released from confinement in accordance with a CCA’s decision after a JAG certifies the case to CAAF, unless the Government can demonstrate reasons justifying further confinement. In Miller the court held that the timing of such release (or review of confinement) is delayed by the time allowed for the JAG to make a decision on certification. Judge Ryan explains that neither of these cases support applying the requirements of R.C.M. 305 to confinement pending CAAF review in a certified case:

the AFCCA’s reliance on Moore and Miller to impose the requirements of R.C.M. 305 in toto was equally unfounded. Neither case purported to impose the entirety of R.C.M. 305 procedural requirements or penalties in a search for “a practical means … to release accused servicemembers from confinement pending appeal in meritorious cases.” Moore, 30 M.J. at 253.

Slip op. at 5-6. This is in part because:

Moore was decided prior to the promulgation of Article 57a(c), UCMJ, which provided such a practical means. Congress established Article 57a(c), UCMJ, to govern the treatment of convicted prisoners where “the sentence to confinement has been ordered executed, but in which review of the case under … (article 67(a)(2)) is pending.” Article 57a(c), UCMJ, permits “the Secretary concerned” to “defer further service of the sentence to confinement while that review is pending.” In other words, convicted prisoners may seek deferral of confinement pending review of a decision favorable to the accused certified to this Court by TJAG and the relevant secretary may grant such deferral and order the prisoner released.

Miller was decided after Article 57a(c), UCMJ, was enacted, and opined that, upon TJAG’s certification to this Court of a favorable decision to an accused from a Court of Criminal Appeals (CCA), the accused must “be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.” Miller, 47 M.J. at 362. But even Miller did not purport to hold that all the procedures and penalties contained within R.C.M. 305 traveled along with a R.C.M. 305-styled continued confinement hearing. Moreover, Miller failed to address Article 57a, UCMJ, let alone its statutory primacy on the question of deferral of sentence, including confinement, during the pendency of an Article 67(a)(2), UCMJ, appeal to this Court.

Slip op. at 6. Accordingly, because neither Moore nor Miller nor R.C.M. 305 itself demand the remedy imposed by the Air Force court:

the AFCCA itself acted ultra vires in imposing the procedural requirements and penalties of R.C.M. 305 on the Government.

Slip op. at 7.

For the third certified issue, Judge Ryan explains that even if a confinement review hearing were required, there was no prejudice in the failure to conduct one:

[E]ven assuming arguendo that the Government should have held a continued confinement hearing sua sponte, within seven days or otherwise, Appellee suffered no prejudice from its failure to do so. A continued confinement hearing was held when Appellee requested it. And that hearing concluded that Appellee was not entitled to be released. Thus, in the end, since Appellee’s sentence was effectively restored by this Court, the time Appellee served between certification and the confinement hearing was in accordance with his adjudged and approved sentence. We conclude that the AFCCA erroneously awarded Appellant confinement credit when none was due.

Slip op. at 7 (citations omitted).

Today’s decision clearly holds that a confinement review hearing is not required within the seven-days prescribed by R.C.M. 305. But it suggests something more: that a confinement review hearing need not be conducted at all. The court holds:

We have no doubt that where a prisoner whose “sentence to confinement has been ordered executed, but in which review of the case under … (article 67(a)(2)) is pending,” seeks a continued confinement hearing, the language of Article 57a(c), UCMJ, is broad enough to permit such a hearing so that the relevant secretary can determine whether to release the prisoner in accordance with Article 57a(c), UCMJ.

Slip op. at 6. Permitting such a hearing and requiring such a hearing are fundamentally different things.

Case Links:
• Prior CAAFlog case page
• AFCCA opinion (76 M.J. 704)
• Blog post: Katso returns to CAAF
• Appellant’s (A.F. Gov’t App. Div.) brief
• Appellee’s (Katso) answer
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

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