

   
   
   
   U.S. v. Smith Jr



UNITED STATES, Appellee
v.
Larry D. SMITH, Jr., Cadet Third Class
U.S. Air Force, Appellant
 
No. 99-0932
Crim. App. No. 32850
 
United States Court of Appeals for the Armed
Forces
Argued1
March 23, 2000
Decided July 5, 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: Captain Bryan A. Bonner
(argued); Colonel
Jeanne M. Rueth and Captain Karen
L. Hecker (on brief); Major Stephen P. Kelly.
For Appellee: Captain Christa S. Cothrel
(argued);
Colonel Anthony P. Dattilo and Lieutenant
Colonel Ronald A. Rodgers (on brief).
Military Judge: Michael B. McShane
 
 


THIS OPINION IS SUBJECT TO
EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Chief Judge CRAWFORD delivered the opinion
of the Court.2
At trial by general court-martial, appellant
was found guilty, pursuant to his pleas, of larceny and conspiracy to commit
larceny, in violation of Articles 121 and 81, Uniform Code of Military
Justice, 10 USC §§ 921 and 881, respectively. His case was tried
by a military judge sitting alone. Appellant entered into a Stipulation
of Fact and a Pretrial Agreement. The Pretrial Agreement provided that
if the sentence included confinement or a fine, the approved sentence would
not include a period of confinement in excess of 24 months nor a fine in
excess of $10,000.00. Appellant also agreed to pay restitution in an amount
not to exceed $3,000.00.
Appellant faced a maximum punishment of a dismissal,
confinement for 36 ½ years, forfeiture of all pay and allowances,
and the possibility of a fine in an unlimited amount. The sentence adjudged
by the military judge on April 1, 1997, was a dismissal, confinement for
30 months, and forfeiture of all pay and allowances. On July 18, 1997,
the convening authority approved the sentence, except for the confinement,
which was reduced to 24 months in accordance with the Pretrial Agreement.
Following acceptance of appellants guilty
pleas, the defense made a timely motion for appropriate relief, requesting
that the military judge grant 196 days of pretrial confinement credit,
asserting that appellant had been illegally punished in violation of Article
13, UCMJ, 10 USC § 813. The military judge denied the motion, finding
that the Government had not restricted appellant with an intent to punish
prior to trial. The judge further found that there were legitimate nonpunitive
governmental objectives served by the restrictions placed on appellant
and that, therefore, Article 13 was not violated in this case. We granted
review of the following issue:



WHETHER APPELLANT WAS SUBJECTED TO ILLEGAL
PRETRIAL PUNISHMENT, IN VIOLATION OF ARTICLE
13, UCMJ.



We hold that there was no violation of Article
13.

FACTS
Appellant was a 22-year-old cadet at the Air
Force Academy involved in approximately 40 larcenies from fellow cadets
totaling more than 500 items at a value of approximately $20,000,00. Several
of these cadets were his close friends. From fellow cadets, he stole a
Rolex watch valued at $4,700.00, more than 100 musical compact discs, other
watches, jewelry, gold chains, a gold wedding ring, a gold crucifix, name-brand
compact disc players, a portable television, a calculator, designer sunglasses,
jeans, clothing, and numerous other items. Appellant also stole wallets
from his fellow cadets, checkbooks, cash, credit cards, automatic teller
cards, drivers licenses, telephone cards, airline tickets, and personal
effects of value to the victims. He accessed many of the credit cards and
automatic teller cards for amounts as high as $750.00 per victim.
Appellant stole when his fellow cadets were
out of their rooms at class or other academic events, and at night when
they were asleep in their rooms. He kept some items, pawned others for
cash, and discarded wallets and other items in the trash in an effort to
frustrate any subsequent investigation. He kept the cash he stole and used
it for "table dances" at a "gentlemans club" in Colorado Springs. He kept
the monies he made from items pawned. He kept the monies he received from
accessing his fellow cadets stolen credit cards and automatic teller cards.
By agreement, he shared only with his coconspirator.
On August 19, 1996, appellant was apprehended
by Security Police personnel from the Air Force Academy on suspicion of
stealing from other cadets. Appellant was then transported to a military
confinement facility at Fort Carson, Colorado. He was confined overnight,
and a pretrial confinement hearing was held the next morning. Captain (Capt)
Verchio conducted the pretrial confinement hearing and determined there
was probable cause to believe appellant committed the alleged offenses
but that pretrial confinement was not appropriate or necessary. Specifically,
Capt Verchio agreed with appellants defense counsels argument at the
hearing that appellants commander had not considered lesser forms of restraint
before ordering appellant into confinement. In making this determination,
Capt Verchio noted that appellants commander had not considered admitting
him "into the cadet transition flight, and restriction to the base or cadet
squadron area."
Upon return to the Academy, appellant was transferred
to a "transitional squadron." This squadron was known as Cadet Squadron
41 or CS 41. Appellant was housed there from August 20, 1996, until his
court-martial on March 31, 1997. Appellants coconspirator was also housed
in CS 41. CS 41 was located behind the 34th Training Wing Operations
Center (TWOC). Essentially, TWOC housed the command and control area for
the cadets, functioning similar to a command post. Cadets would be assigned
to CS 41 on a case-by-case basis, as determined by the Commander, HQ, 34th
Training Group, USAFA, for: honor,3
military deficiency, physical deficiency, UCMJ/OSI investigation, and academic
deficiency.
Appellant was assigned to CS 41 on August 20,
1996, by letter from the commander. The assignment referenced appellants
new "Limits, Liberties and Passes," and advised appellant that as a member
of the Cadet Wing, he was still obliged to follow the Air Force Cadet Wing
Instructions (AFCWI 36-3001). Upon placement in CS 41, appellant was given
additional limits beyond those stated in AFCWI 36-3001. Also on August
20, 1996, appellant signed and acknowledged a letter from the 41st
Deputy Commander as to CS 41 procedures and policies to include uniforms,
housing, inspections, classes, formations, passes and liberties, and so
forth.
At trial, appellant made a motion for appropriate
relief, requesting that the military judge grant 196 days of pretrial confinement
credit, asserting that he had been illegally punished in violation of Article
13. Upon review of the motion, including the supporting testimonial and
documentary evidence, the military judge denied the motion. The military
judge determined that the Government had not restricted appellant with
an intent to punish him prior to trial. The military judge concluded that
there were legitimate nonpunitive governmental objectives served by the
restrictions imposed upon appellant, and that the restrictions imposed
did not violate Article 13. The military judge prepared written essential
findings of fact for the record.

DISCUSSION
Standard of Review
The military judge's factual finding that there
was no intent to punish is reviewed under a clearly erroneous standard
of review. United States v. Phillips, 42 MJ 346 (1995). In the absence
of a factual finding relating to intent to punish, this Court will address
the issue of illegal pretrial punishment de novo, because
the question of whether appellant was subjected to unlawful pretrial punishment
is a mixed question of fact and law. Cf. United States v. Huffman,
40
MJ 225 (CMA 1994).

Pretrial Restraint/Pretrial Punishment
The question of the necessity for pretrial
restraint in the military has undergone a dramatic historical progression
in both the necessity for arrest or confinement of servicemembers accused
of crimes as well as in the terms and conditions of confinement. See
United States v. Bayhand, 6 USCMA 762, 21 CMR 84 (1956). Articles
of War in effect in 1775 required an officer who committed a crime to be
placed under arrest, and a noncommissioned officer or soldier to be imprisoned
until trial. Id. at 765-66, 21 CMR at 87-88. Later, Congress softened
the absolute requirement for the arrest or confinement of servicemembers
charged with crimes, prohibiting confinement unless necessary to insure
the accuseds presence at trial or based upon the seriousness of the crime.
The seriousness- of-the-crime language was later interpreted to mean whether
it was foreseeable that an accused might otherwise commit additional serious
criminal misconduct. United States v. Heard, 3 MJ 14 (CMA 1977).
In the military, the need to prevent serious
misconduct is acute. "The business of military units and the interdependence
of their members render the likelihood of serious criminal misconduct by
a person awaiting trial of even graver concern than in civilian life."
A21-18, Manual for Courts-Martial, United States (1998 ed.). Recognizing
that confinement or arrest may not be appropriate for everyone accused
of a crime, but that some limit on an accuseds freedom might be necessary
to prevent further criminal activity, pretrial restraint expanded beyond
confinement and arrest to include lesser forms of restraint like restriction
in lieu of arrest, first set forth in paragraph 20b of the 1951 Manual
for Courts-Martial, United States, and conditions on liberty, first set
out in RCM 304(a)(1) of the 1984 Manual for Courts-Martial, United States.
All four types of pretrial restraint are contained in the current version
of RCM 304(a).
Along with the view that confinement or arrest
may not be appropriate for everyone accused of a crime, the concept developed
that pretrial punishment is prohibited. In United States v. Bayhand,
supra,
the Court found a violation of Article 13 when the accused, who was in
pretrial confinement, was required to work with sentenced prisoners, attired
in the uniform of a sentenced prisoner. The prohibition against pretrial
punishment is codified in Article 13 of the UCMJ, which states:



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 the other
forms of pretrial restraint. However, RCM 304(f) provides:



Pretrial restraint is not punishment and
shall not be used as such. No person who
is restrained pending trial may be subjected
to punishment or penalty for the offense
which is the basis for that restraint.
Prisoners being held for trial shall not be
required to undergo punitive duty hours or
training, perform punitive labor, or wear
special uniforms prescribed only for post-trial
prisoners. This rule does not prohibit minor
punishment during pretrial confinement for
infractions of the rules of the place of
confinement. Prisoners shall be afforded
facilities and treatment under regulations
of
the Secretary concerned.



(Emphasis added.)
The defense contends that the restrictions
and conditions placed on appellant after he was released from pretrial
confinement did not serve any legitimate nonpunitive governmental purpose
and, thus, constituted punishment. They also urge that there was no reason
to place appellant in Squadron 41 because there was no evidence as to his
continued misconduct or that he was a risk to himself or others. The defense
notes that AFCWI 51-201 describes placement in the Squadron as punishment,
and that the issue is whether there is a legitimate nonpunitive basis for
the action. The defense cites United States v. Palmiter, 20 MJ 90
(CMA 1985), and United States v. Washington, 42 MJ 547 (A.F.Ct.Crim.App.
1995), for the proposition that "Article 13 is violated if, irrespective
of intent on the part of the command, an accused is required to perform
duties or is subjected to restrictions that do not serve any legitimate
nonpunitive purpose." Final Brief at 12.
The Government contends that the conditions
of appellant's restriction were not unduly rigorous or excessive, especially
when compared to restriction of any other cadet at the Academy. Evidence
was introduced at trial indicating that 12 other cadets were placed in
the Squadron because of use of cocaine, drunk driving, and failure to go
to class. The Government contends "there is absolutely no indication that
Academy officials intended to punish him...." Answer to Final Brief at
18. Testimony at trial indicated that since his victims were other cadets,
appellant was placed in CS 41 for his own safety.
Hence, the issue in this case is whether there
is a legitimate nonpunitive basis for placing appellant in CS 41, and for
any of the other restrictions placed upon appellant. 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, supra (prohibiting a pretrial
detainee from wearing clothes except undershorts or requiring him to sit
at a desk from 0400 to 2200 hours was considered improper punishment).
The Discussion to RCM 304(c) provides: "The
decision whether to impose pretrial restraint, and, if so, what type or
types, should be made on a case-by-case basis." It also provides: "The
restraint should not be more rigorous than the circumstances require to
ensure the presence of the person restrained or to prevent foreseeable
serious criminal misconduct."
Our cases have identified various factors which
may assist in determining whether pretrial restraint has crossed the threshold
into pretrial punishment. They are:



1. What similarities, if any, in daily routine,
work assignments, clothing attire, and other restraints and control conditions
exist between sentenced persons and those awaiting disciplinary disposition?
2. If such similarities exist, what relevance
to customary and traditional military command and control measures can
be established by the government for such measures?
3. If such similarities exist, are the requirements
and procedures primarily related to command and control needs, or do they
reflect a primary purpose of stigmatizing persons [a]waiting disciplinary
disposition?
4. If so, was there an "intent to punish or
stigmatize a person waiting disciplinary disposition?



Francis A. Gilligan & Fredric I. Lederer,
Court-MartialProcedure
§ 4-90.00 at 136-37 (2d ed. 1999)(footnotes omitted).

Conclusion
We conclude that the trial judge used the correct
test in this case in examining whether there was an intent to punish or
stigmatize a person awaiting disciplinary action. United States v. Phillips,
supra.
In this instance, because appellant stole from other cadets and could succumb
to future temptation, and because of the possibility of harm to appellant
should he continue to be housed in or to visit the cadet dormitory, the
trial judge found it was appropriate to place appellant in CS 41 and to
restrict his unescorted access to the dormitory, including the cadet store,
post office, and barber shop.
As to the other restrictions, the military
judge noted that all CS 41 cadets are required to eat their meals in the
informal dining room, away from other cadets, have the same restriction
concerning attendance at sporting events, and are under the same rules
concerning passes and leave. These same restrictions apply not just to
those in CS 41 due to UCMJ/OSI investigation, but also to those there due
to honor, military deficiency, physical deficiency, and academic deficiency.
As such, these restrictions do not constitute an intent to punish or stigmatize
a person awaiting disciplinary action.
The military judge also noted that appellant
wore Battle Dress Uniforms (BDUs) for approximately 4 months, unlike other
cadets and Squadron 41 cadets who wore the uniform of the day. Prior to
and apparently independent of trial, appellants command, upon noticing
that appellant was constantly wearing BDUs, notified him to stop wearing
BDUs in lieu of the uniform of the day. The military judge found that appellant
was not ordered to constantly wear BDUs, "and may very well have been laboring
under a misunderstanding as to the requirements which were explained to
him" by his command. Based upon these findings and upon the record, we
agree with the military judge that there was not an intent to punish or
stigmatize appellant.
Commanders are often faced with the dilemma
of where to place servicemembers who present special problems, such as
being held for medical reasons beyond retirement age or end of enlistment;
losing their security clearance for working in a classified area; losing
the trust of their commander when working with security forces; or who
are pending administrative discharge for other reasons. RCM 304(h) specifically
permits "limitations on a servicemember imposed for operational or other
military purposes independent of military justice, including administrative
hold or medical reasons."
Appellants placement in CS 41 could be justified
merely on the basis of military purpose under RCM 304(h), i.e.,
ensuring his safety. The crimes he committed were against other cadets
and occurred while he was living in the cadet dormitory. Some of the items
appellant took were of sentimental value. Even appellant admitted the likelihood
of being subjected to a "blanket party" (wrapped in a blanket and beat
up). Appellants command was also legitimately concerned about the possibility
of appellant committing further thefts against his fellow cadets.
We hold that the military judge was correct
in denying appellants request for sentence credit.
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).
3
Honor refers to cadets whose presence in the squadron would be disruptive
because the superintendent has rendered a decision to disenroll the cadet
for a violation of the Honor Code, which prohibits lying, cheating, or
stealing.


EFFRON, Judge (concurring in part and in the
result).
As I noted in my separate opinion in United
States v. McCarthy, 47 MJ 162, 168 (1997), "the critical question under
Article 13 with respect to an allegation of pretrial punishment is whether
the facts demonstrate a purpose or intent to punish. . . . The findings
of the military judge as to the historical facts that describe the events
at issue may be reviewed under an abuse of discretion standard, but the
conclusions of the military judge as to whether such facts demonstrate
an intent or purpose to punish should be reviewed under a de novo
standard as a question of law." (Citations omitted.)
In the present case, the majority states that
it is applying a clearly erroneous standard of review as to the findings
of the military judge on the issue of intent. However, the majority's detailed
analysis of the historical events reflects a de novo review. Regardless
of the label that the majority appends to its analysis, I agree with its
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.


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