CAAFlog » September 2015 Term » United States v. Gay

CAAF decided the certified Air Force case of United States v. Gay, 75 M.J. 264, No.s 15-0742/AF & 15-0750/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 11, 2016. Recognizing that there are limits on the power of the courts of criminal appeals to grant sentence appropriateness relief, CAAF nevertheless concludes that the Air Force CCA could grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment.

Chief Judge Erdmann writes for a unanimous court.

After being convicted by a general court-martial, Staff Sergeant Gay received a sentence of confinement for six months, total forfeitures, reduction to E-3, and a bad-conduct discharge. He was then confined at a civilian facility where he was initially held in close proximity to a foreign national in violation of the co-mingling provision of Article 12. That provision was addressed last term in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page).

Gay complained (and ultimately received nine days of confinement credit from the convening authority). But Gay was also placed in solitary confinement, seemingly to avoid further co-mingling in violation of Article 12. That solitary confinement formed the basis for a separate complaint of cruel and unusual punishment. The Air Force CCA disagreed that Gay’s solitary confinement constituted cruel and unusual punishment, however the CCA nevertheless reduced the sentence to confinement for three months, reduction to E-3, and a bad-conduct discharge.

The Air Force JAG then certified the case to CAAF, and the court subsequently granted review of a second issue:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

In Wednesday’s opinion CAAF finds that the Air Force court did not abuse its discretion (rejecting the certified issue) and the court does not address the granted issue (because both sides agreed that it was not error for the CCA to fail to remand).

CAAF’s decision in this case is consistent with, but not as broad as, its decision in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), in which the court concluded Article 66(c) commands a court of criminal appeals to conduct a plenary review of a case, including a review to determine whether to leave a trial-stage waiver of an error intact. Rather than relying on a plenary authority, Chief Judge Erdmann focuses on the existence of “a legal deficiency in the post trial conditions to which Gay was subjected.” Slip op. at 9. Specifically:

As the CCA explained, its conclusionwas based, in part, on the fact that solitary confinement was imposed for an improper purpose – Gay did not engage in behavior that would have warranted solitary placement; the conditions of confinement were more severe than what he should have experienced; and the confinement was ordered by an Air Force official to avoid Article 12 violations where an alternative solution was available. While the CCA found that the conditions did not rise to the level of an Eighth Amendment or Article 55 violation, those conditions provide support for the exercise of the CCA’s discretionary sentence appropriateness authority.

Slip op. at 9. Chief Judge Erdmann then ends his opinion for a unanimous court with something of a disclaimer:

In reaching this conclusion, we do not recognize unlimited authority of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of posttrial confinement of which they disapprove. Rather, we hold that the Air Force Court of Criminal Appeals’ decision to grant sentence appropriateness relief in this case was based on a legal deficiency in the post-trial process and, thus, was clearly authorized by Article 66(c).

Slip op. at 10.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

Audio of today’s oral arguments is available at the following links:

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page): Oral argument audio

United States v. Atchak, No. 16-0054/AF (CAAFlog case page): Oral argument audio

In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (discussed here), the AFCCA held that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment but was deserving of (very limited) relief under the CCA’s Article 66(c) sentence-appropriateness power.

The Judge Advocate General of the Air Force then certified the case to CAAF, challenging the CCA’s authority to grant such relief in the absence of a finding of a violation of the Eighth Amendment or Article 55 (certification discussed here).

CAAF has now specified an additional issue for review, questioning whether the CCA should have remanded for a post-trial fact-finding hearing:

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO REMAND APPELLANT’S CASE FOR A HEARING PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), TO DETERMINE THE FACTS SURROUNDING APPELLANT’S POST-TRIAL SOLITARY CONFINEMENT. SEE UNITED STATES v. GINN, 47 M.J. 236 (1997).

Briefs will be filed under Rule 25.

The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.

Last term, in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, 74 M.J. 736, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

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