The appellant in United States v. Barnett, No. 12-0251/AF, 71 M.J. 248 (C.A.A.F. Jul., 16, 2012) (CAAFlog case page) (link to slip op.), received 100 days of confinement credit under Article 13, UCMJ, for a sixteen-month assignment to the “Thunder Pride” team (an administrative “holding unit”) at Luke Air Force Base, Arizona. He was then convicted of various offenses at a general court-martial composed of members. Prior to sentencing, the defense requested that the members receive no instructions regarding the 100 days of credit. However, during the presentencing proceeding, the defense presented the members with evidence of the appellant’s time with the Thunder Pride team. The trial counsel then requested that the members be instructed on the credit, and the military judge provided the following instruction:

In determining an appropriate sentence in this case, you should consider that the accused has been granted 100 days of confinement credit. If you adjudge confinement as part of your sentence, those days will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement and will be given on a day-for-day basis.

The court-martial closed for deliberation, but the members returned with a question regarding whether they could offset the 100 days of credit, apparently based on their own conclusion that it was unerned. The military judge’s discussion with the President inclued this exchange:

PRES: So legally, is it okay for us to consider that hundred days of credit less than what we would consider actual confinement? That’s the question that’s come up in our discussions. And maybe for ease of understanding and, please, this is just for the example, if we consider 300 days as appropriate confinement but we know the hundred days credit is there but we think that the 300 days confinement should be actual confinement so we bump it up to 400 days because we know we’re going to subtract a hundred days; is that legal for us to do that?

MJ: What I can instruct you in this regard is that you should determine a sentence that you believe is appropriate for this accused for the offenses that he’s been found guilty of, considering all of the evidence that you’ve been presented in the case. You’ve been provided the fact or circumstance that, if you adjudge confinement, then he will have 100 days of credit toward any period of confinement that is adjudged by the court.

Following this exchange, the defense asked the military judge to instruct the members that they were to adjudge a sentence without considering the credit. The government opposed this request, and the military judge gave the members the following additional instruction (the “second instruction”):

Your duty is to adjudge an appropriate sentence for this accused that you regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case. These instructions must not be interpreted as indicating an opinion as to the sentence which should be adjudged for you alone are responsible for determining an appropriate sentence in this case. In arriving at your determination, you should select the sentence which will best serve the ends of good order and discipline, the needs of the accused, and the welfare of society.

The Appellant was sentenced to confinement for eight months, reduction to E-1, and a bad conduct discharge. On automatic appeal to the Air Force CCA, he argued that the military judge’s instructions regarding the sentencing credit were erroneous. The CCA, in a published opinion, affirmed the sentence, ruling that

In line with the military judge’s duty to shape the instructions on sentence to the evidence presented and to the law, this Court finds the appellant stands as the “gatekeeper” as to whether or not the evidence of the illegal pretrial punishment is presented to the members. It is akin to cases in which an accused has been subjected to prior nonjudicial punishment (NJP) under [Article 15, UCMJ], for the same act or omission he is facing before a court-martial. Under [Article 15(f)], “the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.” If the appellant chooses to present prior NJP punishment information to the members for the purpose of mitigation, the military judge must instruct the members on the specific credit to be given of the prior punishment under NJP.

In this case, where the appellant chose to introduce evidence of the 16 months he spent assigned to the “Thunder Pride” team as evidence in mitigation, we find the military judge had a duty to instruct the members on the administrative credit awarded so they may consider that information during their deliberation on sentence.

United States v. Barnett, 70 M.J. 568, 572 (A. F. Ct. Crim. App. 2011) (citations and marks omitted). CAAF then granted review of the following issue:

Whether the military judge abused his discretion when he informed the members of appellant’s illegal pretrial punishment credit and then failed to instruct the members based on a submitted question that the were not allowed to nullify some or all of that credit by increasing the sentence.

Last Monday CAAF unanimously affirmed. Judge Erdmann wrote for the court and also filed a separate concurring opinion. Chief Judge Baker wrote separately, concurring in the result.

The court analyzed the issue in three parts: (1) Whether the judge abused his discretion in instructing the members about the credit after the Appellant introduced evidence regarding the Thunder Pride team in sentencing; (2) Whether the judge failed to answer the members’ question about the credit; and (3) Whether the judge abused his discretion by refusing to give the Appellant’s requested instruction that the members not consider the credit. The court answered all three questions in the negative.

On the first question, the court noted that while an Article 13 credit instruction is not listed among the required instructions in Rule for Courts-Martial 1005(e), the rule does require that “instructions should be tailored to the facts and circumstances of the individual case.” Then, citing United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) (holding that an unobjected-to instruction informing the members of pretrial confinement credit did not amount to plain error), the court determined that

Once evidence of pretrial punishment was introduced during sentencing by Barnett, in the interests of reliable and truthful sentencing, it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited.

United States v. Barnett, __ M.J. __, No. 12-0251/AF, slip op. at 11 (C.A.A.F. July 16, 2012). This is the key section of the court’s ruling, as it clarifies that if the accused chooses to inform the members of the circumstances that gave rise to Article 13 credit, as a matter in mitigation, then the military judge may inform them of the credit that the accused will receive for those circumstances.

On the second question, the court explained that neither the Appellant nor the Government argued that the military judge’s second instruction was not relevant, but that the Appellant argued that the instruction did not answer the members’ question about whether they could increase the sentence to offset the credit. The court held that under the circumstances of this case, “the instruction correctly responded to the members’ question.” Slip op. at 12. The court highlighted the following language from the second instruction:

Your duty is to adjudge an appropriate sentence for this accused that you regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case.

Slip op. at 12 (emphasis in original). The court’s caveat to this language (“under the circumstances of this case”) makes this instruction a bad candidate for the Military Judge’s Benchbook (which will likely have a revision addressing this situation). But the court’s acceptance of such a general answer to so specific a question likely turned on the fact that “nothing in the instruction invited the members, either expressly or by inference, to either impose extra confinement to offset the Article 13 credit or impose less confinement in consideration for the pretrial punishment.” Slip op. at 12 (emphasis added). In other words, the instruction neither helped nor harmed either party (aside from the implied bias in the members’ question, which the majority did not address directly).

Lastly, the court turned to the defense request that the military judge instruct the members that they could not increase the sentence to offset the credit. The court evaluated this request utilizing the three-prong test for a requested instruction that is nearly a half-century old. See United States v. Winborn, 14 USCMA 277, 282 (C.M.A. 1963):

Denial of a requested instruction is error if: (1) the requested instruction is correct; (2) it is not substantially covered in the main charge; and (3) it is on such a vital point in the case that the failure to give it deprived the defendant of a defense or seriously impaired its effective presentation.

Barnett, slip op. at 13 (marks and citation omitted). A requested instruction must meet all three prongs, and the court found that the instruction requested by the defense did not meet the second prong because “the issue as to how the members should consider the Article 13 credit was substantially covered in the instructions provided.” Slip op. at 13. More significantly, the court noted that the requested instruction (“can’t offset the credit”) had the “potential for confusing the members” as it “would have been in conflict with the standard instruction properly informing the members that they should consider all matters in extenuation and mitigation as well as those in aggravation in determining an appropriate sentence.” Slip op. at 13-14. In other words, because the credit was a proper consideration for the members after the defense introduced the circumstances underlying it during sentencing (part one of the opinion), a specific instruction to the members limiting their consideration of the credit was both unwarranted and inappropriate.

That concludes the court’s analysis, but Judge Erdmann – who wrote for the majority – filed a separate opinion concurring with his majority opinion. This separate opinion discusses the “tactical decision” an accused seemingly must make when seeking relief from unlawful pretrial punishment under Article 13: litigate the issue before the trial judge, or seek relief from the members. Judge Erdmann noted that the court has not established, or had an opportunity to establish, that such a tactical decision exists, but that if the defense is permitted to litigate the issue of credit before the judge and also present it to the members, then there is the possibility of double credit. However, he did not discuss the possibility of the opposite; that by bringing the matter to the attention of the members, there is the possibility of no credit (because they cancel it out in the adjudged sentence). Notably, this is also the matter unaddressed in the majority opinion (i.e., the implied bias against the credit in the members’ question).

Chief Judge Baker also filed a concurring opinion in which he departed from the conclusion that there was no instructional error in the military judge’s response to the members’ question (part two of the majority opinion). The Chief Judge addressed the issue avoided by Judge Edrmann’s opinions: that “the members asked multiple questions suggesting the possibility that they might nullify the military judge’s previous award of credit.” Barnett, Baker, C.J. concurring, slip op at 1-2. The Chief Judge wrote that “these questions required a tailored response” because the issue of Article 13 credit “is a question of law for the military judge to decide” and because the credit is “relief for the government’s conduct, not a sentencing factor related to the accused’s offenses.” Id. at 2-3 (emphasis in original). However, the Chief Judge found no prejudice given the relatively-light sentence (eight months) compared to the authorized maximum (15 years).

Overall the result seems counter-intuitive, as there appears to be unanimous agreement that the Appellant was entitled to the credit and that an overt cancelling-out of the credit would have been inappropriate. Perhaps the court is just unwilling to inject itself between trial tactics and the consequences of those tactics.

Case Links:
AFCCA opinion
Blog post: AFCCA issues another published opinion
Blog post: CAAF to consider what happens when members want to cancel out confinement credit
Appellant’s brief
Appellee’s (government) brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: United States v. Barnett, No. 12-0251/AF”

  1. stewie says:

    Seems to me the concern is one-sided. Heaven forbid the accused get double credit, but if his credit is cancelled out, then no biggie.

  2. Christopher Mathews says:

    This is one of those instances where getting too cute doesn’t work out for the party making the effort.  We’ll never know whether the accused would have been better off had his counsel simply taken the Article 13 credit rather than trying for more, but the questioning from the members suggests he might have been.

    Having said that, is there any way to ensure that the members don’t “cancel out” the credit?  The members may not ask such blunt questions.  Even if they do, is there any fix other than instructing them?  If we assume that they’re so biased the judge’s instruction here wasn’t enough, what instruction would have sufficed?

  3. stewie says:

    How about something to the effect of:
    You should consider the credit granted by me only to the extent of your consideration as to whether or not you believe any additional credit should be granted the accused for the violations by the command under Article 13 of the UCMJ.
    Or something like that.

  4. Christopher Mathews says:

    How about

    “You are advised that in a previous session of this court-martial, I determined that the accused was entitled to x days of confinement credit for this violation.  If you believe that I exercised my judgment inappropriately by not granting enough credit, you are free to award more; but if you believe I granted too much, who cares what you think?”

    That would be more straightfoward, wouldn’t it?