Opinion Analysis: The Air Force CCA was wrong to apply R.C.M. 305 (and grant credit) for confinement pending CAAF review, in United States v. Katso
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).