

   
   
   
   U.S. v. Starr



UNITED STATES, Appellee
v.
Marcus L. STARR, Senior Airman
U.S. Air Force, Appellant
 
No. 99-0999
Crim. App. No. S29510
 
United States Court of Appeals for the Armed
Forces
Argued1
March 23, 2000
Decided August 25, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which GIERKE, J., EBEL, Cir.J., and SPARR, Dist.J., joined.
EFFRON, J., filed an opinion concurring in part and in the result.
Counsel
For Appellant: Major Stephen P. Kelly
(argued); Colonel
Jeanne M. Rueth (on brief).
For Appellee: Captain Peter J. Camp
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief).
Military Judge: John J. Powers
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Chief Judge CRAWFORD delivered the opinion
of the Court.2
Pursuant to his pleas, appellant was convicted
of two specifications of larceny and one specification of house-breaking,
in violation of Articles 121 and 130, Uniform Code of Military Justice,
10 USC §§ 921 and 930. Contrary to his pleas, he was also found
guilty of dishonorable failure to pay a just debt, in violation of Article
134, UCMJ, 10 USC § 934. The convening authority approved the sentence
of a bad conduct discharge, 4 months confinement, and reduction to the
lowest enlisted grade.
The Court of Criminal Appeals set aside the
bad debt conviction and dismissed that charge but affirmed the sentence.
We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING
DEFENSE COUNSELS MOTION FOR CONFINEMENT CREDIT FOR UNDERGOING PRETRIAL
PUNISHMENT IN VIOLATION OF ARTICLE 13, UCMJ.

For the reasons set forth below, we hold that
the judge was correct in denying confinement credit.

FACTS
Appellant was a bomb dog trainer assigned to
the 51st Security Forces Squadron, Osan Air Base, Republic of
Korea. On or about February,17, 1997, soon after appellant came under suspicion
for the misconduct that formed the basis for the charges here, he was reassigned
to "X-Flight." X-Flight was an extraordinary unit within the 51st
Security Forces Squadron that was composed solely of personnel who could
not, or were not permitted to, perform security forces duties. Such personnel
included those who were facing disciplinary or administrative action, under
investigation, performing extra duties pursuant to punishment under Article
15, UCMJ, 10 USC § 815, or who were on medical profiles that prevented
them from performing normal security forces duties.
Upon being reassigned to X-Flight, appellant
was ordered to surrender his Security Police beret to the first sergeant.
Only those personnel who were reassigned for disciplinary reasons, however,
were required to surrender their berets. The Security Police beret is a
symbol of integrity and membership in an elite unit. According to the squadrons
first sergeant, personnel were required to surrender their berets when
their integrity came into question. One of the stated reasons that berets
were surrendered was to correct the individuals behavior. On numerous
occasions, appellant unsuccessfully requested to be removed from X-Flight.
In addition, trial defense counsel also unsuccessfully requested that the
squadron commander remove appellant from X-Flight.
At sentencing, trial defense counsel asked
the court to give two-for-one administrative pretrial credit for the period
February 17 through November 18, 1997 (275 days) -- the period of time
appellant was assigned to X-Flight and allegedly subjected to illegal pretrial
punishment in violation of Article 13, UCMJ, 10 USC § 813. The military
judge denied this motion, finding that: (1) appellant was assigned to X-Flight
pending investigation for financial misconduct; (2) X-Flights purpose
was to provide productive work for those who could not carry weapons; (3)
berets are required to be surrendered by those facing disciplinary action,
but the berets are surrendered in the privacy of the first sergeants office
and no identification is displayed on the berets; (4) those on X-Flight
for medical reasons do not wear their berets, but are not asked to surrender
them; (5) X-Flight personnel perform necessary work in support of the base
mission; and (6) security police are charged with the responsibility of
protecting our population and its property, and it is essential that its
individuals are above reproach.
Based on these findings, the trial judge held
that the surrender of the beret and the placement into X-Flight furthered
a legitimate government interest:



The court finds that the purpose in placing
the accused in X Flight and removing his beret was not punishment. Rather
it was to ensure that he would be productively utilized pending investigation
into the alleged misconduct. As he could not carry a weapon and perform
Security Police duties, he was not a fully functioning Security Policeman
and, therefore, was asked to surrender his beret.
The court also finds that the surrender of
the beret and the placement into X Flight furthers a legitimate non-punitive
governmental purpose. The surrender of the beret pending investigation
ensures that the beret continues to symbolize the high standards and integrity
that those who proudly wear them and the public they serve have come to
view them. Because they are so proudly owned by members of the Security
Police, they provide a great incentive to those who must temporarily lose
them to gain the trust of their unit, and for those who might contemplate
misconduct, the specter of the loss of the beret provides a clear deterrent.



DISCUSSION
The prohibition on pretrial punishment is codified
in Article 13 of the UCMJ:



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.



Article 13 does not specifically address other
forms of pretrial restraint.
For approximately 9 months, appellant never
complained to his first sergeant nor the commander about his assignment
to the special detachment or the loss of his beret. Hence, as noted by
the defense, the issue in this case is whether there was a legitimate,
nonpunitive basis for placing appellant in X-Flight and for ordering appellant
to surrender his Security Police beret to his first sergeant. See,
e.g.,
United States v. Cruz, 25 MJ 326 (CMA 1987) (apprehending individuals
in front of unit formation and then ridiculing them was punishment under
Article 13); United States v. Palmiter, 20 MJ 90 (CMA 1985) (prohibiting
a pretrial detainee from wearing clothes except undershorts or requiring
him to sit at a desk between 4:00 a.m. to 10:00 p.m. was considered improper
punishment).
As we held in United States v. Smith,
53 MJ 168, 170 (2000), we examine the military judge's factual findings
as to the intent to punish to see if they are clearly erroneous. In this
instance, we hold that they were not.
The trial judge set forth and applied the correct
test: was there an intent to punish or stigmatize a person awaiting disciplinary
action, and if not, were the conditions (surrender of the beret and placement
into X Flight) in furtherance of a legitimate, nonpunitive, government
objective. See United States v. Phillips, 42 MJ 346 (1995);
see
also Bell v. Wolfish, 441 U.S. 520 (1979).There was neither
illegal punishment nor deprivation of liberty tantamount to confinement
to be found in this case. The measures undertaken here simply do not rise
to the level of pretrial punishment under Article 13. To the contrary,
appellants limitations were imposed for legitimate, operational, military
purposes.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 We heard oral argument
in this case at the United States Air Force Academy, Colorado Springs,
Colorado, without objection from the parties involved. See 38 MJ
at 137 n.1.
2
Judge David M. Ebel of the United States Court of Appeals for the Tenth
Circuit and Judge Daniel B. Sparr of the United States District Court for
the District of Colorado sat by designation pursuant to Article 142(f),
Uniform Code of Military Justice, 10 USC § 942(f).
 
 
EFFRON, Judge (concurring in part and in the
result):


Although I would apply a de novo standard of
review, I agree with the majority's conclusion that the actions taken in
this case do not demonstrate a purpose or intent to punish, as those terms
are applied to an issue under Article 13. See United States
v. Smith, 53 MJ 168, 173 (2000) (Effron, J., concurring in part and
in the result).


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