CAAF decided the Army case of United States v. Haynes, 79 M.J. 17, No. 18-0359/AR (CAAFlog case page) (link to slip op.), on July 2, 2019. A divided court reaches the narrow conclusion that the conduct of defense counsel at trial affirmatively waived the issue of credit for prior punishment (known as Pierce credit). Accordingly, CAAF affirms the decision of the Army CCA that denied credit in this case.

Chief Judge Stucky writes for the court, joined by Judges Ryan and Sparks. Judge Ohlson and Judge Maggs each write separate opinions that concur in the result (the denial of credit) but dissent from the finding of waiver.

Private (E-1) Haynes pleaded guilty to numerous offenses pursuant to a pretrial agreement. Two of those offenses were wrongful use of marijuana, and Haynes admitted that he smoked marijuana on an almost-daily basis in an effort to get kicked out of the Army. But in addition to his court-martial conviction for wrongful use of marijuana, Haynes also received nonjudicial (Article 15) punishment for wrongful use of marijuana in the same general time period. That raised the possibility that Haynes was punished twice – the first time by nonjudicial punishment and the second time by the court-martial – for a single offense.

Thirty years ago, in United States v. Pierce, CAAF’s predecessor explained that such double punishment, while not a violation of the Double Jeopardy clause of the Fifth Amendment or the similar protection in Article 44, “would violate the most obvious, fundamental notions of due process of law,” and so “an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” 27 M.J. 367, 369 (C.M.A. 1989) (emphasis omitted). Ten years later, in United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999), CAAF gave an accused four options regarding that credit: put the prior punishment into evidence at sentencing before members, raise it with the military judge alone, raise it with the convening authority (who, at the time, had unlimited power to reduce the sentence for that or any other reason), or not raise the issue of credit at all.

Haynes neither requested nor received any credit for his prior nonjudicial punishment at trial or when the convening authority acted. Instead, the issue was raised for the first time at the Army CCA. The CCA, however, found waiver, concluding that CAAF’s opinion in Gammons “requir[es] an accused to raise the issue of Pierce credit to either the court-martial or to the [convening authority] to avoid waiver as a matter of law.” United States v. Haynes, 77 M.J. 753, 756 (A. Ct. Crim. App. 2018). The CCA considered granting Haynes credit anyway (as part of its plenary review of the findings and sentence), but it determined that the facts of this case do not warrant relief despite the waiver. CAAF then granted review of two issues:

I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

In yesterday’s decision a majority of the court finds that the conduct of Haynes’ defense counsel at trial amounts to an affirmative waiver of the right to any credit for the nonjudicial punishment, with Chief Judge Stucky explaining that the majority does not reach – and so does not endorse – the question decided by the Army CCA (“whether Appellant also waived the issue of Pierce credit by operation of law,” slip op. at 5). Judge Ohlson and Maggs do not agree that the defense counsel’s conduct amounts to waiver, but they nevertheless agree that Haynes is not entitled to credit based on the record in this case.

A waiver occurs when an accused gives up a right. Haynes, for example, unambiguously waived his right to a trial in which the prosecution had the burden to prove his guilt when he pleaded guilty. But there are different kinds of waiver, and the majority’s decision turns on the important distinction between an affirmative waiver and a waiver by operation of law. Chief Judge Stucky explains that:

This Court has recognized that “[w]aiver can occur either by operation of law, or by the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citations omitted). “When … an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).

Slip op. at 3. Waiver by operation of law is waiver that is based on a rule. For example, Mil. R. Evid. 311(d)(2)(A) requires motions to suppress to be made before entry of pleas, and CAAF recently interpreted that rule to require that any motion be particular, with any basis not raised at trial automatically waived. See United States v. Smith, 78 M.J. 325 (C.A.A.F. Feb. 22, 2019) (per curiam) (CAAFlog case page) (applying United States v. Robinson, 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page)). Accordingly, under CAAF’s precedent (but not analogous rules in the civil courts), the failure to move to suppress evidence for a specific reason at trial triggers waiver by operation of law of any other reasons. In contrast, an affirmative waiver is an accused’s personal decision to waive a right, such as Haynes’ decision to waive his right to a trial by pleading guilty.

The Army CCA found waiver of the Pierce credit issue by operation of law in this case, but Chief Judge Stucky and the majority find “a valid affirmative waiver” and so they “need not decide whether [Haynes] also waived the issue of Pierce credit by operation of law.” Slip op. at 5.

Chief Judge Stucky explains that the majority finds waiver in the following:

At trial, counsel engaged in the following exchange with the military judge:

MJ: And, Counsel, based upon the information on the charge sheet, the accused is to be credited with 107 days of pretrial confinement credit; is that correct?

TC: Yes, Your Honor.

DC: Yes, Your Honor.

By answering in the affirmative when asked if he agreed with the proposed amount of pretrial confinement credit due, Appellant affirmatively acknowledged that he was not entitled to any additional confinement credit.

Slip op. at 3-4. That exchange, however, was between the military judge and Haynes’ defense counsel, not between the military judge and Haynes. Chief Judge Stucky does not explain how the defense counsel’s agreement amounts to “Appellant affirmatively acknowledg[ing] that he was not entitled to any additional confinement credit.” Slip op. at 4 (emphasis added). After all, Haynes himself very well might not have been paying attention at that moment (lack of attention being a documented consequence of heavy marijuana use).

Furthermore, Chief Judge Stucky and the majority do not address any of the well-established requirements for waiver:

Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (CAAFlog case page) (quoting United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (quoting United States v. Olano, 507 U.S. 725, 733 (1993))). The right to Pierce credit involves “the most obvious, fundamental notions of due process of law,” Pierce, 27 M.J. at 369, and so one might expect that there would be some specific procedures to waive it, or that an accused must understand it to waive it, or that the accused must at least personally participate in any waiver, or maybe that it should not be waivable at all. But Chief Jude Stucky and the majority don’t say.

Chief Judge Stucky does, however, recognize that the military judge asked about pretrial confinement credit, and “in the military, the term ‘pretrial confinement credit’ typically refers to Allen credit, not Pierce credit.” Slip op. at 4. Nevertheless, the majority reads the military judge’s question about pretrial confinement credit more broadly than is typical:

Since Pierce credit is a type of confinement credit, we think it appropriate to treat the exchange between the military judge and counsel as one concerning confinement credit in the broad sense. It is clear that the military judge sought to understand the amount of credit due to Appellant and explicitly invited Appellant to question his calculation of the credit due. Although offered the opportunity to contradict or add anything, defense counsel declined to do so and instead affirmatively agreed that Appellant was entitled to 107 days of credit.

Slip op. at 4-5.

Judge Ohlson finds “that such a step is neither appropriate nor necessary.” Ohlson, J. con. op. at 1. He writes that:

A finding of waiver is not appropriate for two reasons. First, the colloquy between Appellant and the military judge that is cited by the majority in support of its waiver determination only refers to pretrial confinement credit and not to confinement credit for nonjudicial punishment. Second, waiver requires a knowing relinquishment of rights, and yet Appellant had an objectively reasonable belief based on this Court’s own precedents that he did not have to raise the Pierce credit issue at his court-martial but instead could wait and raise the issue later.

A finding of waiver is not necessary because the majority could have reached the same result—an affirmance of the decision below—without invoking waiver. Specifically, the majority could have simply and correctly noted that even if the law and the facts were to be viewed in the light most favorable to Appellant, he still cannot prevail because the record before us fails to adequately support his request for Pierce credit. Therefore, although I concur with the majority’s disposition of this case, I cannot agree with their line of reasoning in support of it.

Ohlson, J. con. op. at 1. Judge Ohlson does not, however, draw any distinction between a statement by a defense counsel and a statement by the accused himself.

Judge Maggs also agrees that colloquy between the military judge and Haynes’ defense counsel does not support a finding of waiver:

Instead of reaching the merits, the Court holds that Appellant waived any claim to Pierce credit by agreeing that he was entitled to 107 days of “pretrial confinement credit.” United States v. Haynes, __ M.J. __ (3–5) (C.A.A.F. 2019). I respectfully disagree with this conclusion. For the reasons given by Judge Ohlson, I am not convinced that Appellant’s statement regarding “pretrial confinement credit” necessarily covers Pierce credit. Id. at __ (1) (Ohlson, J, concurring in the result).

Maggs, J., con op. at 4.

Both Judges Ohlson and Maggs observe that Haynes totally fails to justify any credit. Judge Ohlson writes that Haynes “did not develop a sufficient factual record to show that the Article 15, UCMJ, 10 U.S.C. § 815 (2012), punishment he received covered the same misconduct as the marijuana use offense of which he was convicted at court-martial.” Ohlson, J. con. op. at 3. Judge Maggs goes further, reviewing the stipulation of fact and concluding that no credit is due because “the court-martial did not find Appellant guilty of or sentence him to punishment for an offense for which nonjudicial punishment had already been imposed.” Maggs, J. con. op. at 4.

But CAAF did not grant review to determine whether Haynes is entitled to credit; it granted review to determine whether such credit can be requested for the first time on appeal. It doesn’t answer that question (a point Judge Maggs makes in his concurring opinion, at page 5). Nor does it answer the other granted issue, which questioned whether a CCA’s plenary review under Article 66 is an adequate substitute for Pierce credit.

Instead, the majority’s finding of waiver is a narrow holding, since it’s an affirmative waiver (based on the specific facts of this case) and not a waiver as a matter of law. The majority opinion also says nothing about the failure to request credit from the convening authority; a possibility acknowledged by CAAF in Gammons but seemingly contradictory to the majority’s waiver holding. Specifically, in Gammons, the court unanimously held that:

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.

51 M.J. at 183 (paragraphing and emphasis added). Chief Judge Stucky’s majority opinion not only doesn’t overrule Gammons, but it doesn’t mention Gammons at all.

Furthermore, even with recent restrictions on a convening authority’s power, a convening authority still has the power to reduce the adjudged punishments of reduction of rank, forfeiture of pay, restriction, hard labor without confinement, and a reprimand, in any case. See Article 60a(b)(2) (2019). And those are, by far, the most common nonjudicial punishments.

Case Links:
ACCA opinion (77 M.J. 753)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma mp3)
CAAF opinion
Blog post: Opinion analysis

8 Responses to “Opinion Analysis: CAAF finds actual waiver – and does not reach waiver by operation of law – in United States v. Haynes”

  1. Bill Cassara says:

    It seems all of this could have been avoided had the military judge not been asleep at the wheel and simply inquired as to the issue.

  2. Zachary D Spilman says:

    It would be a strange inquiry for a military judge to ask every accused who’s pleading guilty if he ever received NJP, and then try to parse whether any NJP involves one of the charges.

    It makes a lot more sense to rely on the defense to raise the issue at some point before appeal (and it’s hard to see why there isn’t an underlying claim of ineffective assistance of counsel in the failure to do so in this case). Furthermore, if we ignore the majority decision in this case and review for plain error – the ordinary standard for issues not raised at trial – then Judge Ohlson and Maggs’ opinions show that even if Haynes is entitled to credit, it’s neither clear nor obvious that he’s entitled to it nor is the amount of credit clear or obvious. Accordingly, the military judge did not fail in his “sua sponte duty to [e]nsure that an accused receives a fair trial.” United States v. Voorhees, __ M.J. __, slip op. at 13 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page) (quoting United States v. Andrews, 77 M.J. 393, 403 (C.A.A.F. 2018) (CAAFlog case page) (quoting United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999))).

  3. stewie says:

    Yeah, I’m with Zach on this. Getting tried for something you got an A15 for prior is the exception, not the rule, why would the MJ just randomly ask that question?
    DC had three different routes to raise the issue and failed. It’s on the DC.

  4. Bill Cassara says:

    Obviously the Article 15 came up at some point. All the judge had do was ask if the accused was waiving Pierce credit. Problem solved.

  5. (Former) ArmyTC says:

    Yes, Bill. It obviously came up…for the first time on appeal.

  6. stewie says:

    Bill, it didn’t come up. If it did come up (and I have no idea HOW it would have come up but for Pierce Credit issues without an objection by DC) and somehow the MJ didn’t rule on it, then that would have been the problem.
    But it didn’t, so there was no way for the MJ to know it existed as a problem.

  7. Anonymous says:

    It did come up, if only obliquely.  According to the ACCA opinion, “Although the government introduced the Article 15 during sentencing as part of the stipulation of fact, the defense never requested that the military judge award Pierce credit.”

  8. stewie says:

    Well then I stand corrected. Bill’s right then, the MJ should have examined the A15 and realized that it was the same offense and asked about Pierce credit to protect the record.
    Having said that, I don’t think ultimately the onus falls on anyone but the DC. If they didn’t raise it, they are the primary person to look to for why.