              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                               Before
          J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        STACY A. WHALEN
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201400020
                       GENERAL COURT-MARTIAL


Sentence Adjudged: 26 September 2013.
Military Judge: LtCol David M. Jones, USMC.
Convening Authority: Commanding General, 2d MAW, II
Expeditionary Force, Cherry Point, NC.
Staff Judge Advocate's Recommendation: Col J.J. Murphy III,
USMC.
For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.
For Appellee: Maj Suzanne M. Dempsey, USMC; Maj David
Roberts, USMC.

                            21 October 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, consistent with her pleas, of two
specifications of conspiracy, one specification of sexual abuse
of a child, and one specification each of production and
distribution of child pornography in violation of Articles 81,
120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§
881, 920b, and 934. The military judge sentenced the appellant
to reduction to pay grade E-1, forfeiture of all pay and
allowances, confinement for four years, and a dishonorable
discharge. The convening authority (CA) approved the adjudged
sentence and, except for the punitive discharge, ordered it
executed.

      The appellant raises two assignments of error (AOE). Both
of the appellant’s AOEs essentially argue that the military
judge abused his discretion by not awarding enough confinement
credit based on the nature and conditions of her pretrial
confinement. First, the appellant argues that additional
confinement credit is warranted because her right to equal
protection was violated when she served pretrial confinement at
a civilian jail rather than at a military brig based upon her
gender. Second, she argues that the additional confinement
credit awarded by the military judge under Article 13, UCMJ and
RULE FOR COURTS-MARTIAL 305(k), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.) was insufficient in light of the pretrial confinement
conditions she suffered. We disagree.

     After careful consideration of the record of trial, the
parties’ pleadings, and the appellant’s assignments of error, we
conclude that the findings and the sentence are correct in law
and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Arts. 59(a)
and 66(c), UCMJ.
                                 Background

     The appellant, a female Marine, was placed in pretrial
confinement after being charged with offenses stemming from the
production and distribution of child pornography. Since the
closest military confinement facility (“brig”) could not house
female detainees, the appellant served 114 days of pretrial
confinement at the Craven County, North Carolina, Jail (“Craven
County Jail”). The Craven County Jail housed female detainees
on behalf of the Marine Corps in accordance with a memorandum of
agreement (MOA) between the Commandant of the Marine Corps and
the Sheriff for Craven County.1 In the Navy and Marine Corps,
female detainees and prisoners may be held in a civilian
facility only if the confinement criteria directed by the Navy

1
  On 9 April 2013, the Commandant of the Marine Corps and the Sheriff for
Craven County entered into an MOA to provide for pretrial and post-trial
confinement support of male and female detainees/prisoners.


                                      2
Corrections Manual (Manual) are met. Secretary of the Navy
Instruction 1640.9C at ¶ 7103.2.c(4) (03 Jan 2006). However,
the MOA did not reference any military regulations governing the
treatment of military pretrial detainees, and the appellant’s
confinement at the Craven County Jail violated several
provisions of the Manual.2

     Prior to entering pleas, the appellant’s trial defense
counsel filed a motion for pretrial confinement credit due to
illegal pretrial punishment under Article 13, UCMJ and R.C.M.
305(k).3 Appellate Exhibit II; Record at 144-65. The defense
counsel argued that the appellant’s pretrial confinement
conditions at the Craven County Jail were “markedly different”
than those of male Marines serving pretrial confinement in the
brig. Record at 160. The defense requested two days’ credit
for every one day the appellant was confined at the Craven
County Jail.

     The military judge concluded that, although the Government
did not intend to punish the appellant by holding her at the
Craven County Jail, she did, however, suffer more onerous
pretrial confinement conditions than her male counterparts, “due
exclusively to her gender.” AE VII at 3. Thus, the military
judge granted partial relief by ordering that 57 days credit be
applied against confinement, in addition to 114 days of day-for-
day Allen credit. Id.; Record at 167.

     The military judge found that the appellant had been
“subjected to harsher conditions [in the Craven County Jail]
than she would have had to endure in a military facility.” AE
VII at 1. Specifically, he cited that the appellant: 1) had
been housed with post-trial confinees; 2) was housed in a
facility that did not separate violent and nonviolent offenders;

2
  For example, the Manual requires segregation between detainee/pretrial and
post-trial personnel if multiple occupancy cells are used. SECNAVINST
1640.9C at ¶ 12502.3.b; see also United States v. Adcock, 65 M.J. 18, 24-25
(C.A.A.F. 2007) (recognizing that commingling of pretrial and post-trial
inmates is regularly treated as pretrial punishment). Applicable prisoner
rights under the Manual include freedom from discrimination on the basis of
sex, access to counsel, protection (i.e. not being housed with violent
offenders), and due process for disciplinary actions. SECNAVINST 1640.9C at
¶ 5101.3.i. Further, “[u]nder no condition will any prisoner be prevented
from consulting or corresponding with counsel[.]” Id. at ¶ 8301.2.c. Every
confinement facility must have the following “core programs”: “PT;
recreation; individual counseling; group counseling; work; incentive; life
skills; and religious.” Id. at ¶ 6103.1.a.




                                      3
3) was required to wear the same uniform as post-trial
prisoners; 4) incurred extra expense4 and restrictions for
personal phone calls to her family and attorney; 5) was not
assigned a brig counselor; 6) was provided food of low quality;
7) was confined in her cell for approximately 17-20.5 hours a
day; and, 8) had no access to gym facilities. Id. At 1-2.

     In contrast, male pretrial detainees confined at the brig:
1) were separated from post-trial prisoners; 2) were confined
for approximately ten hours a day and had access to a
recreational area for at least one to two hours a day; 3) had
less restrictions in place to consult with their attorney; 4)
were permitted to place outside calls to family for less
expense; 5) were assigned brig counselors and provided progress
reports; and 6) were fed higher quality food.

     While in pretrial confinement the appellant received weekly
command visits, attended all scheduled medical appointments, and
met with her defense counsel. The appellant never requested
reconsideration of her pretrial confinement, nor provided
information of her confinement conditions to the reviewing
officer or the military judge5 until her trial defense counsel
raised the pretrial punishment motion at trial.

                                 Discussion

     Since both AOEs essentially argue that the military judge’s
remedy for the appellant’s “onerous” pretrial confinement
conditions was inadequate, and are based upon issues already
ruled on by the military judge at trial, we analyze them
together.6

     This court defers to the military judge’s findings of fact
unless those findings are clearly erroneous. United States v.
King, 61 M.J. 225, 227 (C.A.A.F. 2005). We review the military

4
  Calls from the Craven County Jail cost between $12 and $13 per call, as
opposed to $.40 per minute for Marines confined at a brig.
5
  R.C.M. 305(2)(i)(E)requires that the decision to confine a prisoner be
reconsidered when presented with “significant information not previously
considered” by the Initial Review Officer. R.C.M. 305(j) requires that once
charges are referred, the military judge shall review the propriety of
pretrial confinement upon motion for appropriate relief.
6
  Although none of the parties at trial specifically used the term “equal
protection violation,” it is clear from the record that the appellant’s
motion sought relief based on constitutional grounds, as well as
administrative grounds.
                                      4
judge’s application of those facts to the constitutional and
statutory considerations de novo. Id.

     Pretrial confinement in a civilian jail is subject to the
same scrutiny as confinement in a military detention facility.
United States v. James, 28 M.J. 214, 215 (C.M.A. 1989). Article
13, UCMJ, prohibits: (1) the imposition of punishment prior to
trial and (2) conditions of arrest or pretrial confinement that
are more rigorous than necessary to ensure the accused’s
presence at trial. King, 61 M.J. at 227. The second
prohibition “prevents imposing unduly rigorous circumstances
during pretrial detention.” Id. “Conditions that are
sufficiently egregious may give rise to a permissive inference
that an accused is being punished, or the conditions may be so
excessive as to constitute punishment.” Id. at 227-28 (citing
United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997);
James, 28 M.J. at 216).

     R.C.M. 305(f) requires prisoners to be “afforded facilities
and treatment under regulations of the Secretary concerned.”
Id. “‘Where the rights of individuals are affected, it is
incumbent upon agencies to follow their own procedures. This is
so even where the internal procedures are possibly more rigorous
than otherwise would be required.’” United States v. McGraner,
13 M.J. 408, 416 (C.M.A. 1982) (quoting Morton v. Ruiz, 415 U.S.
199, 235 (1974)); see also United States v. Adcock, 65 M.J. 18,
23 (C.A.A.F. 2007) (holding Government violation of regulations
consistent with treatment of pretrial prisoners as innocent
amounted to an abuse of discretion under R.C.M. 305(k)).

     Confinement in violation of service regulations does not
create a per se right to sentencing credit under the UCMJ.
United States v. Williams, 68 M.J. 252, 253 (C.A.A.F. 2010).
However, under R.C.M. 305(k), a service member may identify
violations of applicable service regulations by pretrial
confinement authorities, and on that basis request confinement
credit. Id. R.C.M. 305(k) allows for credit for pretrial
confinement that involves an “abuse of discretion or unusually
harsh circumstances.”

     This court has previously found that a post-trial female
prisoner was denied equal protection of the law when, solely by
reason of her gender, she was housed in a civilian confinement
facility which lacked rehabilitation programs. United States v.
Houston, 12 M.J. 907, 915 (N.M.C.M.R. 1982) (finding no
prejudice however because the appellant successfully completed
her probationary period, entitling her to a suspended bad-

                                5
conduct discharge, despite not having a rehabilitation program).
Likewise, the appellant in this case faced disparate conditions
as compared to her male counterparts serving pretrial
confinement in the brig, and we agree with the military judge
that she was subjected to harsher conditions of pretrial
confinement because the brig was unable to house female Marines
due to limited resources and bed space. Beyond this explanation,
the Government could not further articulate a valid governmental
reason for this disparity. The “courts have not been impressed
with the argument that the unequal treatment is justified due to
economic considerations,” Houston, 12 M.J. at 913, 915, and
neither are we under the circumstances.7

     Those seeking to classify individuals on the basis of their
gender carry the burden of showing an “exceedingly persuasive
justification” for the classification. Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 724 (1982) (citing Kirchberg v. Feenstra,
450 U.S. 455, 461 (1981); Pers. Adm’r of Mass. v. Feeney, 442
U.S. 256, 273 (1979)). In the prison context, the burden is met
by showing that the disparity in prison conditions serves
“‘important governmental objectives and that the discriminatory
means employed’ are ‘substantially related to the achievement of
those objectives.’” Id. (quoting Wengler v. Druggists Mut. Ins.
Co., 446 U.S. 142, 150 (1980)); see also Houston, 12 M.J. 915.

     After conducting our own de novo review of the facts of
this case, we concur with the military judge that the
appellant’s gender subjected her to more onerous pretrial
conditions in the Craven County Jail as compared to her male
counterparts serving pretrial confinement in the brig. We also
concur with the military judge that the confinement conditions
were neither the result of pretrial punishment nor the result of
any knowing violation of the applicable service regulations.


7
  See Rhodes v. Chapman, 452 U.S. 337, 359 (1981) (Brennan, J., concurring)
(noting that “courts are in the strongest position to insist that
unconstitutional conditions [at prisons] be remedied, even at significant
financial cost”); Gates v. Collier, 501 F.2d 1291, 1319-20 (5th Cir. 1974)
(holding fund shortage is not a justification when prison program operates
under unconstitutional conditions and practices); Jackson v. Bishop, 404 F.2d
571, 580 (8th Cir. 1968) (finding “[h]umane considerations and constitutional
requirements [in the prison context] are not, in this day, to be measured or
limited by dollar considerations”); Glover v. Johnson, 478 F. Supp. 1075,
1078 (E.D. Mich. 1979), aff’d sub nom. Cornish v. Johnson, 774 F.2d 1161 (6th
Cir. 1985) (holding equal protection violation when female prisoners were
denied rehabilitation programs that were offered to male prisoners and
finding that economic “considerations alone cannot justify official inaction
or legislative unwillingness to operate a prison system in a constitutional
manner”).
                                      6
                               Adequacy of Remedy

     The sufficiency of a military judge’s relief is reviewed
for an abuse of discretion. Williams, 68 M.J. at, 257. Here,
we find that the military judge’s remedy ordering that 57 days
credit be applied against confinement, in addition to 114 days
of day to day Allen credit was adequate and does not amount to
an abuse of discretion under the circumstances of this case.8
Accordingly, we decline to grant the appellant additional
relief.

                                 Conclusion

     Accordingly, the findings and the sentence, as approved by
the CA, are affirmed.


                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




8
  This case does not rise to the level of unlawful punishment faced in United
States v. West, No. 201200189, 2013 CCA LEXIS 230 at *25-30, unpublished op.
(N.M.Ct.Crim.App. 21 Mar 2013), where we affirmed a sentence of “no
punishment” because the appellant faced pretrial punishment through her
confinement at the County Jail and at a duty hut, and where her command
overreached by using her confinement to bargain with and threaten her, or
King, 61 M.J. at 228, where the appellant was given three days of confinement
credit for each day he spent in solitary segregation without explanation.
                                      7
