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.

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Audio of yesterday’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page): Oral argument audio (wma mp3)

United States v. Haynes, No. 18-0359/AR (CAAFlog case page): Oral argument audio (wma mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

• King v. United States, No. 18-1254 (pend. conf. on Apr. 26)

This week at CAAF: CAAF will hear oral argument in three cases this week:

Tuesday, April 23, 2019, at 9:30 a.m.:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page)

Issue: Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief

Followed by:

United States v. Haynes, No. 18-0359/AR (CAAFlog case page)

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?

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

Wednesday, April 24, 2019, at 9:30 a.m.:

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page)

Issue: Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

Case Links:
• CGCCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 30, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2019.

Yesterday CAAF granted review in this Army case:

No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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 CCA 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?

Briefs will be filed under C.A.A.F. R. 25.

Pierce credit is credit at a court-martial for prior nonjudicial punishment for the same offense. In United States v. Pierce the Court of Military Appeals (CAAF’s predecessor court) concluded that:

It does not follow that a servicemember can be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a court-martial for the same conduct. Either consequence would violate the most obvious, fundamental notions of due process of law. Thus, in these rare cases, 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 in original). More recently, CAAF observed 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.

United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999). Then, the court explained, the cognizant authority will determine the appropriate credit:

If the accused chooses to raise the issue of credit for prior punishment during an Article 39(a) session rather than on the merits during sentencing, the military judge will adjudicate the specific credit to be applied by the convening authority against the adjudged sentence in a manner similar to adjudication of credit for illegal pretrial confinement. If the accused chooses to raise the issue of credit for prior punishment before the convening authority, the convening authority will identify any credit against the sentence provided on the basis of the prior NJP punishment. Likewise, if the issue is raised before the Court of Criminal Appeals, that court will identify any such credit.

Gammons, 51 M.J. at 184.

The Army CCA issued a published opinion in Haynes available here and at 77 M.J. 753, finding waiver but with a catch:

[W]e read Gammons as requiring an accused to raise the issue of Pierce credit to either the court-martial or to the CA to avoid waiver as a matter of law. If waived, no relief can be obtained as a matter of law from this court. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (explaining that a valid waiver of an issue at trial extinguishes the alleged error on appeal).

Here, appellant waived any entitlement to Pierce credit when he affirmatively told the military judge that he was not entitled to any additional confinement credit and stipulated (see below) that the Article 15 addressed post-preferral misconduct. As cited in Gammons, this is also consistent with R.C.M. 1001(b)(2) (for personnel records of an accused introduced during sentencing, “[o]bjections not asserted are waived”).

77 M.J. at 757, slip op. at 6. The catch is that the CCA found that the stipulated facts preclude any credit, because “the Article 15 and the charged offense addressed separate misconduct.” Haynes, 77 M.J. at 757, slip op. at 6. CAAF has addressed such a situation before, with the explanation that:

[A]lthough Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses. . .

United States v. Bracey, 56 M.J. 387, 389 (C.A.A.F. 2002).