          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                            Staff Sergeant JOHNNY A. ESCOBAR
                                    United States Air Force

                                              ACM 38343

                                            ____ M.J. ____

                                         16 September 2014

         Sentence adjudged 8 March 2013 by GCM convened at Aviano Air Base,
         Italy. Military Judge: Dawn R. Eflein (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 20 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Roberto Ramírez; and Gerald R. Bruce, Esquire.

                                                  Before

                              ALLRED, MITCHELL, and WEBER
                                  Appellate Military Judges

                                    OPINION OF THE COURT

                  This opinion is subject to editorial correction before final publication.



MITCHELL, Senior Judge:

       A general court-martial composed of a military judge convicted the appellant,
pursuant to his pleas, of two specifications of aggravated sexual contact with a child who
was under 12 years of age; two specifications of indecent liberties with a child; one
specification of indecent conduct with a child; one specification of producing child
pornography; and one specification of possessing child pornography, in violation of
Articles 1201 and 134, UCMJ, 10 U.S.C. §§ 920, 934. The court sentenced the appellant
to a dishonorable discharge, confinement for 22 years, forfeiture of all pay and
allowances, and reduction to E-1. Consistent with the terms of a pretrial agreement, the
convening authority approved only 20 years of confinement but approved the remainder
of the sentence as adjudged.

       The appellant alleges that he was held in pretrial confinement with foreign
nationals in violation of Article 12, UCMJ, 10 U.S.C. § 812, and that the conditions of
his confinement while in the Italian prison system violated Article 13, UCMJ,
10 U.S.C. § 813. Although not raised by the appellant, we also address errors in the staff
judge advocate’s recommendation (SJAR) and its addendum. We conclude that the
appellant is entitled to relief solely on this last issue.

                                               Background

       The appellant was assigned to Camp Darby, Italy. On 13 May 2012, an
anonymous email was received by the Italian Sigonella Carabinieri2 Station. The e-mail
alleged that a young female was being sexually abused and photographs of her abuse
were posted on a particular website. The Sigonella Carabinieri conducted a joint
investigation with the Naval Criminal Investigative Service and the Air Force Office of
Special Investigations (AFOSI). The investigation identified the victim as a six-year-old
child who resided in Italy near Camp Darby. Further investigation revealed that the
appellant was the abuser depicted in the photographs.

       The carabinieri determined they needed to search the appellant’s off-base
residence. Pursuant to Italian law, the appellant was required to be present at his
residence when it was searched. The Air Force was obligated under the North Atlantic
Treaty Organization Status of Forces Agreement to make the appellant available.
Because the appellant was on vacation in Germany, agents from the AFOSI detachment
at Ramstein Air Base (AB), Germany, detained the appellant, and he underwent a sexual
assault examination. The appellant’s first sergeant flew to Germany and escorted him
back to Italy.

       When they returned to Italy, the appellant was transferred to the custody of the
carabinieri. The carabinieri escorted the appellant to his residence and searched it. At
that time, the carabinieri believed that Italian citizens may have been involved in the
1
   The Article 120, UCMJ, 10 U.S.C. § 920, offenses were charged under the version of Article 120, UCMJ,
contained in the National Defense Authorization Act for Fiscal Year 2006 (applicable to sex offenses committed
during the period 1 October 2007 through 27 June 2012).
2
   Carabinieri is the plural of the Italian word carabiniere. See Collins English Dictionary–Complete and
Unabridged (HarperCollins Pub. 2003), available at http://dictionary.reference.com/browse/carabinieri (defining
carabiniere as: “A member of the Italian national police force, organized as a military unit and charged with
maintaining public security and order as well as assisting local police.”) (last visited 20 August 2014).



                                                      2                                           ACM 38343
offenses. Although AFOSI agents were present during the search, at that time both the
Italian officials and the AFOSI agents regarded it as an Italian investigation. The
carabinieri seized media devices and other evidence from the appellant’s residence and,
after the search, placed the appellant into confinement.3 He was originally confined by
the Italians in Pisa, Italy. On approximately 8 June 2012 he was transferred to an Italian
confinement facility near Florence, Italy, because the prosecutor in Florence had
jurisdiction over the type of offenses allegedly committed by the appellant while the
prosecutor in Pisa did not.

        The Air Force sought jurisdiction of the appellant and his offenses from Italian
authorities. On 7 June 2012, the Aviano AB staff judge advocate (SJA) sent a formal
request for primary jurisdiction to the Italian Minister of Justice. In his request, the SJA
noted that although this was a case of concurrent jurisdiction, the Air Force was asserting
its right to primary jurisdiction because the victim was an Air Force dependent and not an
Italian citizen. The SJA requested the appellant’s release from Italian confinement and
for the carabinieri to provide all evidentiary items to the AFOSI. After this request,
members of the SJA’s office made multiple phone calls to Italian prosecutorial officials
but did not receive custody of the appellant. On 2 August 2012, the SJA requested
formal assistance from the United States Sending State Office4 in obtaining jurisdiction
over the appellant. The SJA sent a follow-up letter to that office on 16 August 2012.

       On 17 August 2012, the appellant was returned to military authorities, and his
commander ordered him into immediate pretrial confinement. A pretrial confinement
hearing was held the next day with the reviewing officer deciding to continue pretrial
confinement. The appellant remained in military pretrial confinement until his
court-martial.

        The military judge awarded the appellant day-for-day credit for the 85 days he
spent in Italian confinement. See United States v. Pinson, 54 M.J. 692, 694–95 (A.F. Ct.
Crim. App. 2001) (concluding day-for-day credit applies when a member is held in
pretrial confinement by a foreign government).5 At trial, the appellant contended that he
was entitled to additional credit for the time he spent in the Italian confinement system.
The appellant asserted that because he was in immediate association with foreign
nationals—namely Italians—while in Italian confinement, this constituted a violation of

3
  An Air Force Office of Special Investigations agent testified that while the carabinieri were searching the
appellant’s residence, the appellant asked them if he could be tried in the Italian court system because he did not
want to be tried by the United States. He also offered to provide information to the carabinieri of others who
uploaded pictures to the website.
4
   The United States Sending State Office for Italy is the United States Department of Defense diplomatic-legal
office responsible for supervising the administration of the North Atlantic Treaty Organization Status of Forces
Agreement in Italy. See U.S. SENDING STATE OFFICE, http://italy.usembassy.gov/ussso.html (last visited 20 August
2014).
5
   The military judge also awarded the appellant pretrial confinement credit for the days he spent in military pre-trial
confinement. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984).


                                                           3                                              ACM 38343
Article 12, UCMJ. He also argued that his conditions of confinement while in Italian
confinement were unduly harsh, entitling him to additional credit for violations of Article
13, UCMJ. Lastly, he argued that the military failed to abide by its own regulation,
USAFE Instruction 51-706, Foreign Countries: Exercise of Foreign Criminal
Jurisdiction Over US Personnel (26 November 2007), which “defines policy,
responsibilities, and procedures for protecting the rights of U.S. personnel subject to
foreign criminal jurisdiction,” including the military’s obligations to its members held in
confinement by other nations.6

       The military judge awarded the appellant an additional 140 days credit for the
Government’s violations of the USAFE Instruction. The military judge denied the motion
for credit for alleged violations of Articles 12 and 13, UCMJ, stating:

                  [T]he court finds that Article 12 and Article 13 do not apply
                  to the Italian judicial system. Those are designed for military
                  confinement or confinement facilities where we put people at
                  the behest of the military, even if they are civilian
                  confinement facilities. So those do not apply in this situation.

                              Applicability of Articles 12 and 13, UCMJ

       The protections of Article 12, UCMJ, apply to members of the armed forces
“everyplace,” that is, in confinement facilities both within and outside the continental
limits of the United States. United States v. Wilson, 73 M.J. 529, 533 (A.F. Ct. Crim.
App. 2014), aff’d, United States v. Wilson, 73 M.J. 404 (C.A.A.F. 2014). However, we
conclude that the protections of Articles 12 and 13, UCMJ, apply only (1) to persons
subject to the Code, (2) who are placed into confinement by or on behalf of persons
subject to the Code, (3) for pending court-martial charges or as a result of a court-martial
conviction. Accordingly, we concur with the military judge and deny the appellant any
additional credit.

       Interpreting the applicability of Articles 12 and 13, UCMJ, are issues of statutory
interpretation, which we review de novo. United States v. Wise, 64 M.J. 468, 473–74
(C.A.A.F. 2007), United States v. Zarbatany, 70 M.J. 169, 174 (C.A.A.F. 2011).

                  As in all statutory construction cases, we begin with the
                  language of the statute. The first step is to determine whether
                  the language at issue has a plain and unambiguous meaning
                  with regard to the particular dispute in the case. The inquiry
                  ceases if the statutory language is unambiguous and the
                  statutory scheme is coherent and consistent.

6
    This regulation also appears as U.S. Army Europe Regulation 550–50 and CNE-C6F Instruction 5820.8K.


                                                       4                                          ACM 38343
Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) (citations and internal
quotation marks omitted). Whether the statutory language is ambiguous is determined
“by reference to the language itself, the specific context in which that language is used,
and the broader context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997).

       The language of Articles 12 and 13 is not plain and unambiguous on whether they
apply to a military member detained by a separate sovereign pending criminal
prosecution by that sovereign where such confinement is not at the behest of military
authorities. Both articles are written in the passive voice, so it is not clear from the plain
language who is prohibited from taking action in contravention of these articles.7
Article 12, UCMJ, begins: “No member of the armed forces may be placed in
confinement in immediate association with . . . .” Article 13, UCMJ, similarly begins:
“No person, while being held for trial, may be subjected . . . .”

       Unclear language can become clear, however, if the congressional intent behind
the legislation is reviewed. Wise, 64 M.J. at 475; United States v. Disney, 62 M.J. 46, 51
(C.A.A.F. 2005) (looking, inter alia, to legislative history to define the purpose of a
statute criminalizing the certain activities with explosive materials); United States v.
Reeves, 62 M.J. 88, 93 (C.A.A.F. 2005) (invoking legislative history to understand the
congressional purpose behind the Child Pornography Prevention Act of 1996); Loving v.
United States, 62 M.J. 235, 241–42 (C.A.A.F. 2005) (relying on legislative history to
glean the congressional intent behind Article 76, UCMJ, 10 U.S.C. § 876).

       Having looked at the legislative history of Article 12, UCMJ, we conclude this
statutory provision was not intended to apply to situations where a foreign sovereign is
imprisoning a military member for violations of that sovereign’s laws.

                The legislative history surrounding Article 12, UCMJ,
                identifies the concerns it sought to address. Article 12,
                UCMJ, stems from conditions of confinement experienced in
                World War II, a still-recent event when the UCMJ was
                debated in 1950. During that war the various military
                branches conducted two million courts-martial of United
                States personnel. James B. Roan & Cynthia Buxton, The
                American Military Justice System in the New Millennium,
                52 A.F. L. Rev. 185, 187 (2002). Some American
                servicemembers who had been convicted in these courts-
                martial had, at times, been held in prisons overseas with

7
  Compare Article 31(a), UCMJ, 10 U.S.C. § 831(a), which specifies: “No person subject to this chapter may
compel any person . . . .”


                                                    5                                         ACM 38343
             prisoners of war or other enemy nationals. See Uniform Code
             of Military Justice: Hearings on H.R. 2498 Before a
             Subcommittee of the House Committee on Armed Services,
             81st Cong. 914–16 (1949), reprinted in Index and Legislative
             History, Uniform Code of Military Justice (1950) (not
             separately paginated).

Wise, 64 M.J. at 475.

      The following testimonial exchange between Mr. Felix Larkin, Assistant General
Counsel in the Office of the Department of Defense and Rep. John Anderson referenced
both United States facilities and “foreign jails”:

             MR. ANDERSON: [I]s there any place in the code that
             expresses prohibition against confining our men in foreign
             jails?

             MR. LARKIN: No; but this one prevents them being confined
             with enemy prisoners of war or foreign nationals not
             members in the same cell.

             ....

             MR. ANDERSON: [U]nder this code, could a commanding
             officer have an enlisted man . . . confined in a foreign jail?

             MR. LARKIN: Yes, he could, for a short time or whatever
             time is necessary. But if they are so confined they may not be
             in immediate association with any [foreign nationals].

Wise, 64 M.J. at 476 (quoting Uniform Code of Military Justice: Hearings on H.R. 2498
Before a Subcommittee of the House Committee on Armed Services, 81st Cong. 915
(1949), reprinted in Index and Legislative History, Uniform Code of Military Justice
(1950) (not separately paginated) [hereinafter “House Subcommittee Hearings”]).

      Likewise the legislative history for Article 13, UCMJ, includes the following
explanation:

             The provision as to the rigor of restraint is derived from
             present Army and Navy practice. The article also makes clear
             that a person being held for trial may be punished for offenses
             not warranting trial by court martial.



                                            6                                  ACM 38343
House Subcommittee Hearings, at 916.

        Thus, the legislative history clarifies that the concern of Congress in enacting both
Articles 12 and 13, UCMJ, was about actions taken by military authorities, not actions
taken by separate sovereigns.

        Our jurisprudence has long recognized the rights of sovereign nations to enforce
their laws within their own borders. “[W]hen the offense is against the laws of another
nation, primary jurisdiction lies with that nation, and only when [that nation] expressly or
impliedly waives its jurisdiction will the provisions of the Uniform Code of Military
Justice apply.” United States v. Murphy, 18 M.J. 220, 233 (C.M.A. 1984) (quoting
Smallwood v. Clifford, 286 F. Supp. 97, 101 (D.D.C. 1968)). In an unpublished decision,
our colleagues in the U.S. Navy-Marine Corps Court of Criminal Appeals relied on this
language to “conclude that the appellant’s claim for credit based on the conditions of his
confinement while held [by the military on behalf of the foreign government] pursuant to
the [Status of Forces Agreement] is not reviewable under Article 13, UCMJ.”
United States v. Suttle, NMCCA 201100030, unpub. op. at 2 (N.M. Ct. Crim. App.
31 October 2011).8

        This conclusion is also supported by the case law on the application of Article 31,
UCMJ, 10 U.S.C. § 831, to investigations involving foreign law enforcement agents.
“The fact that the individual is eventually tried by the military does not indicate that the
foreign officials are agents of the military or that the investigations are so intertwined that
rights’ warnings would be required.” United States v. French, 38 M.J. 420, 426 (C.M.A.
1993).

       Additionally, the Supreme Court’s decisions in a series of cases about American
citizens who commit offenses while abroad and the limits of Constitutional reach into
other lands provide persuasive authority:

                 As Chief Justice Marshall explained nearly two centuries ago,
                 “[t]he jurisdiction of the nation within its own territory is
                 necessarily exclusive and absolute.” Schooner Exchange v.
                 McFaddon, 7 Cranch 116, 136, 3 L. Ed. 287 (1812).
                 See Wilson [v. Girard, 354 U.S. 524, 529 (1957)] (“A
                 sovereign nation has exclusive jurisdiction to punish offenses
                 against its laws committed within its borders, unless it
                 expressly or impliedly consents to surrender its jurisdiction”);
                 Reid v. Covert, 354 U.S. 1, 15, n. 29, 77 S. Ct. 1222,

8
 Similarly, in another unpublished decision, our court determined that an appellant was not entitled to Article 13,
UCMJ, relief for time he spent in an Italian prison while the United States did not have jurisdiction over the case.
United States v. Marcuson, ACM 33537 (A.F. Ct. Crim. App. 29 Feb 2000) (unpub. op.), aff’d, 54 M.J. 363
(C.A.A.F. 2000) (mem.).


                                                         7                                            ACM 38343
             1 L.Ed.2d 1148 (1957) (opinion of Black, J.) (“[A] foreign
             nation has plenary criminal jurisdiction . . . over all
             Americans . . . who commit offenses against its laws within
             its territory”); Kinsella v. Krueger, 351 U.S. 470, 479,
             76 S.Ct. 886, 100 L.Ed. 1342 (1956) (nations have a
             “sovereign right to try and punish [American citizens] for
             offenses committed within their borders,” unless they “have
             relinquished [their] jurisdiction” to do so).

             This is true with respect to American citizens who travel
             abroad and commit crimes in another nation whether or not
             the pertinent criminal process comes with all the rights
             guaranteed by our Constitution. “When an American citizen
             commits a crime in a foreign country he cannot complain if
             required to submit to such modes of trial and to such
             punishment as the laws of that country may prescribe for its
             own people.” Neely v. Henkel, 180 U.S. 109, 123, 21 S. Ct.
             302, 45 L. Ed. 448 (1901).

Munaf v. Geren, 553 U.S. 674, 694-95 (2008) (all but second alteration in original).

       In sum, Article 12, UCMJ, and Article 13, UCMJ, apply everywhere to the actions
of military authorities who confine those subject to the Code pursuant to a completed or
pending court-martial. The provisions do not provide protection to servicemembers who
are confined by a separate sovereign pending criminal prosecution by that sovereign,
where such confinement is not at the behest of military authorities.

            Error in Staff Judge Advocate’s Recommendation on Forfeitures

        On 22 March 2013, the appellant requested the convening authority “defer all
forfeitures and reduction in rank until . . . action” so the appellant could continue to
provide financial support to his dependent minor child. On 26 March 2013, the
convening authority denied the request. On 12 April 2013, the appellant requested the
convening authority waive automatic forfeitures to be paid to his dependent child and to
suspend the adjudged forfeitures and reduction in rank while the waiver was in effect.
Trial defense counsel correctly explained that because there were adjudged forfeitures,
those forfeitures would need to be suspended in order for the dependents to receive any
benefits. The appellant renewed this same request in his clemency petition on
15 April 2013. In his addendum, the SJA recommended approving a waiver of the
automatic forfeitures but did not recommend suspension of the reduction in rank or the
adjudged forfeitures. The SJA advised the commander that “the total forfeiture of all pay
and allowances is an administrative result of the sentence, and, therefore does not need to
be suspended prior to waiving the automatic forfeitures.” The convening authority


                                             8                                  ACM 38343
followed the SJA’s advice and approved the adjudged total forfeiture of all pay and
allowances, inter alia, and ordered the forfeitures executed. The convening authority also
waived the automatic forfeitures to the benefit of the appellant’s dependent child.

      The appellant has not raised this issue on appeal. Therefore, we will apply the
same test as if the error was in the initial SJAR and the appellant did not challenge it:

                If defense counsel does not make a timely comment on an
                error or omission in the SJA’s recommendation, the error is
                waived unless it is prejudicial under a plain error analysis.
                Because [the a]ppellant did not object to the recommendation
                of the SJA, we must determine whether there was error,
                whether it was plain, and whether it materially prejudiced a
                substantial right of the accused. With respect to an error in an
                SJA’s post-trial recommendation, the prejudice prong
                involves a relatively low threshold—a demonstration of some
                colorable showing of possible prejudice. Our review is de
                novo.

United States v. Capers, 62 M.J. 268, 269–70 (C.A.A.F. 2005) (citations and internal
quotation marks omitted).

        We find the SJA’s advice to the convening authority regarding adjudged
forfeitures is plain error that was materially prejudicial to a substantial right of the
accused. Air Force Instruction 51-201, Administration of Military Justice, ¶ 9.28.7
(6 June 2013), explains:

                The convening authority must defer, suspend, mitigate or
                disapprove all or part of adjudged total forfeitures in order to
                waive any amount of mandatory forfeitures. Mandatory
                forfeitures can be waived for the benefit of the accused’s
                dependents only to the extent adjudged forfeitures are not in
                effect. See United States v. Emminizer, 56 M.J. 441
                (C.A.A.F. 2002).9

       We do not hold that the appellant has a right to the waiver of automatic forfeitures
or to the deferral of adjudged forfeitures, but he has a right to have the convening
authority make the decision based on accurate legal advice.



9
 We also recommend military justice practitioners review United States v. Lundy, 60 M.J. 52, 54–55 (C.A.A.F.
2004), for a comprehensive review of the interplay between adjudged and automatic/mandatory forfeitures.



                                                     9                                         ACM 38343
        “[T]he Courts of Criminal Appeals have broad power to moot claims of
prejudice . . . .” United States v. Wheelus, 49 M.J. 283, 288 (C.A.A.F. 1998). In the case
of plain error in the SJAR, Rule for Courts-Martial 1106(c)(6) provides that “appropriate
corrective action shall be taken by appellate authorities without returning the case for
further action by a convening authority.” We therefore take corrective action that
eliminates the prejudicial effect of the error and determine that the adjudged total
forfeitures of pay and allowances should not be approved. See United States v. Cook,
46 M.J. 37 (C.A.A.F. 1997). We affirm the remainder of the approved sentence: a
dishonorable discharge, confinement for 20 years, and reduction to E-1.

                                         Conclusion

       The findings and the sentence, as modified, are correct in law and fact, and no
error materially prejudicial to the substantial rights of the appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and the sentence, as modified, are

                                         AFFIRMED.


             FOR THE COURT




             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             10                                ACM 38343
