

   
   
   
   U.S. v. Fricke



UNITED STATES, Appellee
v.
Michael W. FRICKE, Lieutenant Commander
U.S. Navy, Appellant
 
No. 98-0783
Crim. App. No. 96-1293
 
United States Court of Appeals for
the Armed Forces
Argued December 10, 1999
Decided July 5, 2000
SULLIVAN, J., delivered the opinion
of the Court, in which EFFRON, J., and EVERETT, S.J., joined. CRAWFORD,
C.J., and GIERKE, J., each filed an opinion concurring in part and dissenting
in part.
Counsel
For Appellant: Alison Ruttenberg
(argued); Major Dale Anderson, USMC (on brief).
For Appellee: Lieutenant Janice
K. O'Grady, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, USN (on brief).
Military Judge: Craig L. Carver

 

This opinion is
subject to editorial correction before publication.
 

Judge SULLIVAN delivered the opinion of
the Court.
Appellant was tried at the Naval Legal
Service Office, Norfolk, Virginia, by a general court-martial composed
of a military judge sitting alone. Pursuant to his pleas, he was found
guilty of premeditated murder, in violation of Article 118, Uniform Code
of Military Justice, 10 USC § 918. On August 30, 1994, appellant was
sentenced to a dismissal, confinement for life, total forfeitures, a fine
of $100,000, and an additional 2 years confinement if the fine was not
paid. On June 11, 1996, the convening authority approved the sentence as
adjudged, except, pursuant to a pretrial agreement, he suspended confinement
exceeding 30 years and all forfeitures and fines for a period of 10 years.
The Court of Criminal Appeals affirmed the findings and sentence on March
10, 1998. 48 MJ 547.
On June 4, 1999, we granted review
of the following issues:



I. WHETHER THE NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT APPELLANT IS NOT ENTITLED
TO ADDITIONAL ADMINISTRATIVE TIME CREDIT FOR HAVING BEEN ILLEGALLY CONFINED
PRIOR TO TRIAL, AND ADDITIONAL ADMINISTRATIVE TIME CREDIT FOR HAVING BEEN
SUBJECTED TO UNLAWFUL PRETRIAL PUNISHMENT IN VIOLATION OF ARTICLES 13 AND
55, UCMJ.
II. WHETHER THE NAVY-MARINE CORPS COURT
OF CRIMINAL APPEALS ERRED IN FINDING THAT APPELLANTS GUILTY PLEA IS NOT
VOID IN VIOLATION OF ARTICLE 45, UCMJ, IN THAT APPELLANT PLEADED GUILTY
TO A CAPITAL OFFENSE AND THE GENERAL COURT-MARTIAL OF THE KIND SPECIFIED
IN 10 USC SECTION 816(1)(B) WAS WITHOUT JURISDICTION TO CONVICT APPELLANT
BASED UPON THIS IMPROVIDENT PLEA.



We hold against appellant on Issue II.
On Issue I, we remand appellants case for a DuBay1
hearing on his post-trial claim of unlawful punishment prior to trial.
Article 13, UCMJ, 10 USC
§ 813; see United States v.
Ginn, 47 MJ 236 (1997); cf. United States v. Combs, 47
MJ 330 (1997); see generally McMillian v. Johnson,
88 F.3d 1554, 1564-65 (11th Cir. 1996).

(A)
Facts
Appellant was a 38-year old Lieutenant Commander
with 17 years of naval service at the time of the offense, and he was assigned
to NAS Oceana, Virginia Beach, Virginia. About sunset on the evening of
May 13, 1988, appellant's 31-year-old wife, Roxanne, was shot and killed
as she entered her vehicle after shopping at a Farm Fresh supermarket in
Virginia Beach. An assailant approached her car, stole her purse, and shot
her twice with a handgun. The crime remained unsolved until October 1993,
at which time appellant was arrested.
Lamar Brunson, who had served in the Navy with
appellant, informed the Norfolk police that appellant had hired a hit man
to kill his wife. The hit man was paid $5,000 shortly after the murder
and had been promised a total of $25,000. Appellant paid him an
additional $8,000 sometime later. Shortly before his wife's death, appellant
had secured a $100,000 term life insurance policy on his wife's life. She
already had an existing life insurance policy payable in the amount of
$25,000. Appellant was the beneficiary on both policies.
Appellant was kept in pretrial confinement
for 326 days. He alleges that during this period, he was housed in a 6-feet
by 8-feet cell within the Disciplinary Segregation Unit. According to an
affidavit which appellant submitted with his post-trial submissions, he
was kept there 23 hours a day, was fed in his cell, and was not allowed
to talk to other prisoners. He claims he was required to sit at a small
school-like desk from 4:30 a.m. to 10:00 p.m. each day. He was not allowed
to sit or lie on his bunk or to sleep. He was only allowed to read the
Bible or some other Christian literature.
Appellant initially entered a plea of not guilty
to a premeditated murder charge but changed his plea to guilty after the
conclusion of the Governments case. At that time, he secured a pretrial
agreement from the convening authority. As part of the agreement, the convening
authority promised to withdraw the previous capital referral if appellant
successfully completed his providence inquiry to the charged offense. The
following exchange between the military judge and trial counsel took place
before appellants plea was entered:



MJ: At this time, trial counsel, you have
an announcement to make regarding the pretrial agreement and the capital
referral?
TC: Yes, sir. Sir, Ive been authorized
by the convening authority that this General Court-Martials now been referred
noncapital. That referral decision is conditioned upon your acceptance
of a plea of guilty from the accused to the Charge and Specification, as
well as the pretrial agreement in this case.
MJ: Very well. Commander Fricke, because the
Government has withdrawn the capital referral at this time, that gives
you a different option regarding forum election. . . .



(R. at 1392).
After appellant entered his guilty plea, the
following colloquy occurred:



MJ: And, defense counsel, what advice have
you given the accused as to the maximum punishment for the offense of which
hes offered to plead guilty?
IMC: Sir, Ive advised Lieutenant Commander
Fricke that the maximum punishment authorized in this case is: Confinement
for life; forfeiture of all pay and allowances; a fine; loss of all
lineal numbers and seniority; and dismissal from the naval service.
MJ: Commander Fricke, you have been correctly
advised of the maximum punishment. On your plea of guilty alone, you could
receive:
A dismissal;
Confinement for life;
Total forfeiture of all pay and
allowances;
A fine; and
Loss of all numbers, seniority or lineal
position in the Navy.
MJ: Do you understand that?
ACCUSED: Yes, sir.



(R. at 1395) (emphasis added).
After his trial, appellant submitted two affidavits
to the appellate court below and made a claim for sentence credit based
on illegal pretrial punishments. One was his affidavit, and the other was
that of Major Bart Larsen, who was housed in the same facility as appellant
during appellants confinement, but as a sentenced prisoner. Appellant
alleged, and Major Larsen corroborated, various conditions endured by appellant
during his pretrial confinement and that they were told these conditions
were imposed in an effort on the part of Brig authorities to produce a
confession from appellant.
The Government, in response to appellants
claims of illegal pretrial confinement and unlawful pretrial punishment,
submitted an affidavit of the Director of Corrections at the Norfolk Naval
Brig to the court below. Based solely on these three affidavits, the court
below rejected appellants claims, relying on this Courts decision in
United
States v. Ginn, 47 MJ 236 (1997). It asserted that "[m]ost of the facts
alleged in [appellants affidavits] . . . would not result in relief even
if any factual dispute were resolved in appellants favor[.]" It also
said, "Under these circumstances [two affidavits from appellant 3 years
apart] the appellate filings and the record as a whole "compellingly demonstrate"
the improbability of the remainder of appellants affidavits."
United
States v. Fricke, 48 MJ at 550, quoting United States v. Ginn,
47 MJ at 248. Judge Leo dissented, reasoning that "there is no basis in
the appellate filings or the record as a whole to support the majoritys
finding that the improbability of appellants factual assertions has been
compellingly demonstrated on this claim of pretrial punishment."
Id.
at 551.
Appellants affidavit, as noted above, recounted
his belief as to why he was subjected to these "horrific and onerous conditions"
of pretrial confinement. He stated in his affidavit of June 1995:



The Governments intent was clear and
summed up by Senior Chief Jacobs, the senior counselor assigned to the
Naval Brig and the counselor assigned to me during my confinement there.
Senior Chief Jacobs told me on a number of occasions that the Government
would keep me "locked down until they broke" me. His comments to me
are documented in the enclosed statement of Major Bart Larsen, an Air Force
Officer who was confined a portion of the time in the Brig while I was
there. The Senior Chief was completing his second, three-year tour of duty
at the Naval Brig and was completing his Bachelors Degree in Criminology.
He was no rookie to the manner in which the Government operates and spoke
from extensive experience and training.

* * *
As previously mentioned, the Governments intent
of the manner in which I was confined was aptly stated by Senior Chief
Jacobs, the senior counselor at the Brig. He stated on many occasions
it was common for the military to keep a pre-trial inmate locked down in
order to break them and get them to confess.



(Emphasis added.)
Appellant also submitted an affidavit dated
April 1995 from another prisoner, Major Bart Larsen. He described the conditions
of confinement similar to appellants affidavit and he further stated:



We were housed in adjacent cells even though
I was an adjudged prisoner and LCDR Fricke was in pretrial confinement.
We had the same counselor, Senior Chief Jacobs, the senior counselor at
the Brig, who often talked to us together. Senior Chief Jacobs was on his
second, three- year tour of duty at the Norfolk Naval Brig. On several
occasions I heard him state that many times the military would hold personnel
in arduous pretrial confinement for a long period of time to "break them"
into confessing. He also said that LCDR Fricke "held the brig record for
being in the block longer than any previous prisoner."



(Emphasis added.)
The Government, in response, submitted an affidavit
from the prison administrator of the Naval Brig where appellant was held
in pretrial confinement. It stated:



1. My name is Ronnie C. Askew. I am the Director
of Corrections at Naval Brig, Norfolk, Virginia. I have been assigned at
this facility since April 1980 and was serving in this position during
the pretrial confinement of LCDR Fricke [sic] have personal knowledge of
the conditions of his confinement. The following statements are based upon
current memory.
2. All individuals confined are first
assigned to a one person cell measuring approximately 6 feet wide, 8 feet
deep, and 10 feet high for a period of observation and custody and security
classification. They are not required to stay in this cell at all times
and are removed to visit their counselor, use the phone, purchase health
and comfort items, go to the barber shop and medical if needed. Due
to the requirement to house officers separate to the extent possible from
enlisted prisoners, LCDR Fricke was assigned to either cell block A or
B during his confinement period. During the time frame that LCDR Fricke
was confined at this facility, officers were housed in the cell block area
in order to maintain separation from enlisted prisoners. All cells at this
facility are designed the same, no cell or cell block is designated a specific
status. The difference between special quarters and disciplinary segregation
is based on what items the prisoner is allowed to have in his cell. Disciplinary
segregation also results in the loss of all privileges. LCDR Fricke
was never placed in disciplinary segregation and was afforded all privileges
possible. In order for officer prisoners to participate in programs
with enlisted members the officer is required to submit a request in writing
and state that he waives his right of separation from enlisted. To my knowledge,
LCDR Fricke never made such a request nor did he waive his right of separation.
I have attached copies of the daily routine for officers as contained in
NAVBRIGNORVAINST 5000.1B (revised Oct 96 but in effect during LCDR Fricke's
confinement period), if LCDR Fricke did not watch TV or read other than
the Bible, it must have been by personal choice.
3. In regards to the use of restraining devices,
LCDR Fricke was not escorted outside the Brig compound by Brig staff. The
use of restraints would have been a decision of the Naval Base Police Department
who provided escorts.
4. In order to prevent injury to the prisoner
or others, chief petty officer and officer prisoners are not allowed to
wear ribbons or collar devices at any time inside the Brig.



(Emphasis added.)

___ ___ ___
(B)
Validity of Guilty Plea
(Granted Issue II)
The first issue we will address in this case
is Assigned Issue II. Appellant asks that we set aside his guilty plea
to premeditated murder and his noncapital sentence for two reasons. First,
he asserts that his plea of guilty in a case referred as capital was "void"
under Article 45(b), UCMJ, 10 USC § 845(b).2
Second, he asserts that the military judge had no jurisdiction to accept
a plea of guilty to this offense in a case referred as capital. Article
18, UCMJ, 10 USC § 818.3
We disagree.
The factual premise of appellants argument
is that his case was referred capital at the time his plea of guilty to
premeditated murder was proferred and accepted by the military judge. In
his final brief, he recognizes that the convening authority had agreed
to withdraw the case as capital, if his plea of guilty was accepted by
the military judge. Moreover, he recognizes that the military judge did
indeed accept his guilty plea. Nevertheless, he asserts:



However, there is nothing in the record to
show that the convening authority actually withdrew the referral as a capital
case and re-referred it as a noncapital case. In the absence in the record
of any paperwork by the convening authority referring the case as noncapital,
the case remained a capital case throughout all the proceedings, including
the guilty plea and sentencing phases. Therefore, at all times during the
trial until sentence was announced, the appellant faced the death penalty,
and in fact, a death qualified panel remained on standby to try him for
his life until the start of the pre-sentencing hearing.



Final Brief at 34-35.
We are not persuaded by appellants statutory
arguments for several reasons. First, he has cited no controlling authority
for his assertion that "paperwork by the convening authority referring
the case as noncapital" was required. See United States v. King,
28 MJ 397, 399 (CMA 1989); RCM 601(e)(1), Discussion, Manual for Courts-Martial,
United States (1994 ed.) (nonbinding comments of drafters of Manual generally
suggesting "[a]ny special instructions must be stated in the referral indorsement");
cf.
RCM 103(2) (no express requirement that noncapital referral be stated in
instruction that is written). Second, his argument ignores the fact that
the military judge, without objection by the parties in this case, acknowledged
the noncapital referral of his case on the record prior to the acceptance
of his guilty plea. (R. 1392). See United States v. Clark,
35 MJ 432, 433 n.1 (CMA 1992); cf. United States v. McFarlane,
8 USCMA 96, 23 CMR 320 (1957). Finally, the failure to reduce the re-referral
to writing (not the re-referral itself) was technical in nature and did
not deprive appellant of the essential protections of the above-noted statutes.
See
United States v. Stinson, 34 MJ 233, 238 (CMA 1992), citing United
States v. Gebhart, 34 MJ 189 (CMA 1992), and United States v. Jette,
25 MJ 16 (CMA 1987). Clearly, our case law has recognized that common sense
must prevail in these circumstances.
See United States v. Yates,
28 MJ 60, 63 (CMA 1989). Therefore, appellant loses on Issue II.

(C)
Pretrial Punishment
(Granted Issue I)
The other issue raised in this case concerns
appellant's post-trial claim that he was unlawfully placed in pretrial
confinement and unlawfully punished while in that status. His initial contention
is that, in light of his exemplary service performance, he should not have
been confined solely on the basis of an allegation of a 5-year-old murder.
See
RCM 305(h)(2)(B)(iii).4
His second contention is that prison authorities improperly subjected him
to excessively arduous and inhumane conditions of pretrial confinement,
not placed on other pretrial confinees, in order to coerce or break him
into confessing. He requests "credit of five-for-one days for the 326 days
that he spent in pretrial confinement." Final Brief at 13.
Article 13, UCMJ, 10 USC § 813, provides:



§ 813. Art. 13. Punishment prohibited
before trial
No person, while being held for trial, may
be subjected to punishment or penalty other than arrest or confinement
upon the charges pending against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the circumstances required to
insure his presence, but he may be subjected to minor punishment during
that period for infractions of discipline.



Absent affirmative waiver of this issue at trial,
we have considered claims under this codal provision raised for the first
time on appeal. United States v. Huffman, 40 MJ 225, 227 (CMA 1994);
see
United States v. Combs, 47 MJ 330, 333 (1997).5
In United States v. McCarthy, 47 MJ
162, 165 (1997), this Court recognized that Article 13, UCMJ, prohibits
both the purposeful imposition of punishment on a military accused prior
to court-martial and pretrial confinement conditions which are more rigorous
than the circumstances required to ensure an accused's presence. Moreover,
this Court also recognized in United States v. Miller, 46 MJ 248,
250 (1997), that the purposeful denial of the constitutional rights of
a servicemember while in pretrial confinement might constitute illegal
pretrial punishment permitting sentence credit. Finally, we have held that
the failure to object to a military magistrate or chain of command is strong
evidence that unlawful pretrial punishment did not occur.6
See United States
v. Huffman, supra at 227.
Our first inquiry under these principles is
whether appellant has raised a legal claim which, if true, would entitle
him to relief. See United States v. Ginn, 47 MJ at 244. He
avers, inter alia, that for 326 days he was locked in his
cell, 23 hours per day, 15 1/2 of which he was required to sit at a small
wooden desk or stand nearby if he fell asleep at the desk. A majority of
the court below held that the facts alleged in appellant's affidavits would
not result in relief or were compellingly demonstrated to be improbable.
48 MJ at 550. We disagree.
The conditions alleged above are not "de
minimis" impositions on a pretrial detainee for which the law is
not concerned.
See Bell v. Wolfish, 441 U.S. 520, 539 n.21
(1979), quoting
Ingraham v. Wright, 430 U.S. 651, 674 (1977); see
also McClanahan v. City of Moberly, 35 F.Supp.2d 744, 745-46
(E.D. Mo. 1998) (and cases cited therein). Instead, they are "genuine privations
and hardship over an extended period of time," which "might raise serious
questions under the Due Process Clause as to whether those conditions amounted
to punishment."
Bell v. Wolfish, 441 U.S. at 542; see also
Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985); Pippins
v. Adams County Jail, 851 F.Supp. 1228, 1232 (C.D. Ill. 1994). In fact,
as pointed out by the dissenting judge below, conditions similar to appellant's
alleged pretrial confinement have previously been considered "far more
onerous than would be required to assure [appellants] presence." 47 MJ
at 551 (Leo, J., dissenting), quoting United States v. Palmiter,
20 MJ 90, 99 (Everett, C.J., concurring in the result). Finally, appellants
particular allegations, corroborated by a second prisoner with direct knowledge
of the conditions of his confinement, were opposed by post-trial assertions
of a prison administrator as to general prison practices. Cf. United
States v. Combs,
supra (essentially unrebutted case).
In addition, coercing a confession is not a
legitimate governmental objective. See Culombe v. Connecticut,
367 U.S. 568, 584 (1961) ("neither the body nor mind of an accused may
be twisted until he breaks") (opinion of Frankfurter, J.); Bell
v. Wolfish, 441 U.S. at 539 (noting that "if a restriction or condition
is not reasonably related to a legitimate [government] goal . . . a court
permissibly may infer that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees qua detainees");
see
generally Block v. Rutherford, 468 U.S. 576, 583-84 (1984).
Here, appellant submitted a post-trial affidavit that the confinement authorities'
intent in imposing a continuous lockdown on him as a pretrial detainee
was to coerce his confession in violation of his constitutional rights.
See
Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996). The
prison official's affidavit does not particularly deny this charge but
at least impliedly disputes such an intent on the part of prison authorities.
Cf.
Rapier
v. Harris, 172 F.3d 999, 1002-03 (7th Cir. 1999) (placing
pretrial detainee in solitary confinement for 270 days expressly based
on objective of maintaining safety of other inmates and jail personnel
found to be legitimate government purpose). In these circumstances, a factual
decision on the intent of the detention officials is also necessary to
decide whether appellant was subjected to illegal pretrial punishment.
See
United States v. Ginn, supra at 245.
The appropriate resolution of this unlawful
pretrial punishment claim is to remand this case for a DuBay hearing.
Id.;
see
McMillian v. Johnson, 88 F.3d at 1564-65. There, the record can
be fully developed as to the conditions actually imposed on appellant during
his pretrial confinement and the intent of detention officials in imposing
those conditions.
See United States v. Fricke, 48 MJ at 550-51
(Leo, J., dissenting);
Ginn, 47 MJ 236; Huffman, 40 MJ 225;
see
also Bell v. Wolfish, 441 U.S. at 537-39 (for test to determine
whether pretrial confinement constitutes unconstitutional punishment).

(D)
Conclusion
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed as to findings but set aside
as to sentence. The record of trial is returned to the Judge Advocate General
of the Navy for further proceedings in accordance with this opinion and
United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). After such proceedings
are concluded, the record of trial, along with the military judges findings
of fact and conclusions of law, will be returned to the Court of Criminal
Appeals for further review under Article 66(c), Uniform Code of Military
Justice, 10 USC § 866(c)(1994). Thereafter, Article 67(a), UCMJ, 10
USC § 867(a)(1994), will apply.
FOOTNOTES:
1 United
States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
2
Article 45, Uniform Code of Military Justice, states:


(b) A plea of
guilty by the accused may not be received to any charge or specification
alleging an offense for which the death penalty may be adjudged.


3
Article 18, UCMJ, states:


. . . However, a general
court-martial of the kind specified in section 816(1)(B) of this title
(Article 16(1)(B)) shall not have jurisdiction to try any person for any
offense for which the death penalty may be adjudged unless the case has
been previously referred to trial as a noncapital case.


4
We find no merit to this claim. See generally United States
v. Gaither, 45 MJ 349, 352 (1996) (abuse-of-discretion standard).
5
In view of appellant's unrebutted assertion that no motion
for sentence credit
based on unlawful pretrial punishment was made at his trial on advice of
defense counsel that it could be raised on appeal, we do not find a knowing
and intelligent waiver of this issue. See United States v. Combs,
47 MJ 331, 333-34 (1997).
6
Appellant's affidavit dated June 1995 clearly indicates that he repeatedly
protested his treatment to Senior Chief Jacobs, the senior counselor at
the Brig.


CRAWFORD, Chief Judge (concurring in part and
dissenting in part):
I agree with the Courts disposition of Issue
II.  As to Issue I, consistent with my views in
United States v.
Huffman, 40 MJ 225, 228 (CMA 1994)(Crawford, J., dissenting in part
and concurring in the result), and United States v. Combs, 47 MJ
330, 334 (1997)(Crawford, J., dissenting), I would hold that appellant
has waived his claim concerning unlawful pretrial punishment by failing
to raise the matter before either the magistrate or the military judge.
Even though I would dispose of Issue I by applying
waiver, I find that appellants failure to complain is "strong evidence"
that he was not punished in violation of Article 13. Huffman, supra
at 227; see United States v. James, 28 MJ 214 (CMA 1989);
United
States v. Palmiter, 20 MJ 90, 97 (CMA 1985).
Appellant spent 326 days in pretrial confinement.
He complained for the first time in June 1995, nearly 1 year after his
court-martial, that he was required to sit at a small wooden desk within
his 6-by-8-foot cell for 15½ hours per day, or stand "for hours"
should he fall asleep at that desk. He was not allowed to talk with other
prisoners. He was only permitted to read the Bible or Christian literature
by the light of one 40-watt light bulb, but was prohibited from attending
church services and Bible studies. He was denied the amenities of sentenced
prisoners: access to recreational facilities and equipment; newspapers;
television; radio; assistance organizations; and rehabilitation programs.
The majority is correct by concluding that
if these allegations are true, appellant would be entitled to relief. However,
unlike the majority, I find that the record, logic, and common sense together
"compellingly demonstrate" the improbability of the facts alleged by appellant.
Cf.
United
States v. Ginn, 47 MJ 236, 248 (1997).
First, appellant was a 38-year-old Lieutenant
Commander who extensively litigated the necessity for his pretrial confinement.
Yet, if one is to believe him, appellant failed to mention these "horrific
and onerous" pretrial conditions either to the magistrate or the military
judge. Second, the conditions which appellant claims he had to endure are
strikingly similar to those found to have existed at the Charleston Navy
Brig, and which we found to be a violation of Article 13, in United
States v. Palmiter, supra. Either the Department of the Navy
has decided to flout the authority of this Court and reinstate pretrial
confinement conditions that we condemned, or appellants recitation of
his pretrial confinement conditions is other than reality. I suggest the
latter. Accordingly, I would affirm the Court of Criminal Appeals decision.


GIERKE, Judge (concurring in part and dissenting
in part):
I agree with the majoritys resolution of Issue
II. In my view, Issue I was waived. United States v. Huffman, 40
MJ 225, 228-29 (CMA 1994).
This is one more case demonstrating the wisdom
of the waiver rule in RCM 905(e). Appellant is not an inexperienced sailor.
As the majority notes, at the time of the alleged offenses in 1988, he
was 38-year-old commissioned officer with 17 years of service. By the time
he was tried in 1994, he was in his 40s and retirement eligible. He did
not find his conditions of pretrial confinement sufficiently onerous to
challenge them at trial. In my view, the result of the majority opinion
is to allow sandbagging by this appellant, and to leave the court below
with a Hobsons choice of investigating a stale, 6-year-old allegation
or giving appellant a windfall.
As a final note, I believe that Article 13
issues in future guilty-plea cases could be resolved easily in a manner
consistent with both the majority and minority opinions in Huffman,
if military judges would conclude their plea inquiry with a question whether
there is any claim of unlawful pretrial punishment.


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