                         UNITED STATES, Appellee

                                         v.

               Allen S. HARRIS, Private First Class
                   U.S. Marine Corps, Appellant

                                  No. 07-0508
                        Crim. App. No. 200500452

       United States Court of Appeals for the Armed Forces

                         Argued January 14, 2008

                          Decided March 25, 2008

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Lieutenant Heather L. Cassidy, JAGC, USN
(argued); Lieutenant Richard H. McWilliams, JAGC, USN.

For Appellee: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Major Brian K. Keller, USMC (on brief); Commander Paul
C. LeBlanc, JAGC, USN, and Lieutenant Tyquili R. Booker, JAGC,
USN.

Military Judges:    P. H. McConnell and S. F. Day


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harris, No. 07-0508/MC


     Judge STUCKY delivered the opinion of the Court.

     We granted review to consider whether the United States

Navy-Marine Corps Court of Criminal Appeals erred by failing to

award Appellant sufficient additional pretrial confinement credit

for unduly rigorous brig conditions and improper denial of

necessary medical care, and whether the relief the court ordered

was meaningful.   We hold that Appellant failed to meet his burden

to establish his entitlement to additional confinement credit,

and any meaningful relief would be disproportionate to any harm

that Appellant may have suffered.

                                I.

     After an evening of consuming alcohol, Appellant assaulted

two other Marines in separate incidents -- he chased one with a

knife, and stabbed the other.   As a result of those assaults,

Appellant served 186 days in pretrial confinement.

     At trial, Appellant moved for additional confinement credit

for the following reasons:   (1) the decision to place him in

pretrial confinement was an abuse of discretion -- that is, it

failed to explain the need for confinement and failed to consider

lesser forms of restraint and justify why lesser forms of

restraint would be inadequate; (2) he was inappropriately

classified as a maximum security detainee which caused him to be

placed in special quarters; and (3) he suffered from extreme

heat, lack of medical attention, restricted television, exercise,


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and food selection privileges, rodent and pest infestation, and

lack of privacy when reviewing documents with counsel.    The

military judge concluded that Appellant was appropriately placed

in pretrial confinement and classified as a maximum security

detainee; that he was not denied appropriate and necessary

medical care; and there was no evidence that the Government

intended to punish Appellant during his pretrial confinement.

However, the military judge granted Appellant two additional days

of credit for each of the fifteen days counsel visited Appellant

(a total of thirty days), holding that brig personnel improperly

reviewed paperwork counsel used during consultations with

Appellant.

     Complying with a pretrial agreement that provided for

suspension of all confinement in excess of eighteen months,

Appellant pled guilty to, and was convicted of, simple assault

and assault with a deadly weapon in violation of Article 128,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2000).

The military judge sentenced him to a bad-conduct discharge,

confinement for twelve months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.

Appellant received a total of 216 days of credit toward his

sentence to confinement -- day-for-day credit for each of the 186

days he spent in pretrial confinement and thirty days due to brig




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United States v. Harris, No. 07-0508/MC


personnel interfering with his right to counsel.   The convening

authority approved the sentence.

     The Navy-Marine Corps Court of Criminal Appeals affirmed.

United States v. Harris, No. NMCCA 200500452, 2007 CCA LEXIS 55,

at *9, 2007 WL 1702575, at *3 (N-M. Ct. Crim. App. Feb. 15, 2007)

(unpublished).   It concluded that the military judge’s findings

that Appellant “was not denied appropriate and necessary medical

care and that there was no intent to punish” him while he was in

pretrial confinement was fully supported by the record.   2007 CCA

LEXIS 55, at *7 n.1, 2007 WL 1702575, at *2 n.1.   Nevertheless,

the court granted Appellant one additional day of credit for each

of the 186 days he spent in pretrial confinement, because

Appellant was placed in maximum custody solely based on the

nature and seriousness of the charges against him, and “the

Government presented no evidence that the appellant was a flight

risk or that there was any risk that he would harm himself or

others if lesser degrees of restraint were utilized.”   2007 CCA

LEXIS 55, at *6-*7, 2007 WL 1702575, at *2.   The Government has

not appealed that issue.   By granting Appellant an additional 186

days of credit, Appellant’s pretrial confinement credit totaled

402 days on a sentence of twelve months.

                                II.

     “No person, while being held for trial, may be subjected to

punishment or penalty other than arrest or confinement upon the


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United States v. Harris, No. 07-0508/MC


charges pending against him, nor shall the arrest or confinement

imposed upon him be any more rigorous than the circumstances

require to insure his presence . . . .”   Article 13, UCMJ, 10

U.S.C. § 813 (2000).

          Article 13, UCMJ, prohibits two things: (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 for trial. The first prohibition of Article
     13 involves a purpose or intent to punish, determined
     by examining the intent of detention officials or by
     examining the purposes served by the restriction or
     condition, and whether such purposes are “reasonably
     related to a legitimate governmental objective.” Bell
     [v. Wolfish], 441 U.S. [520,] 539 [(1979)]; [United
     States v.] McCarthy, 47 M.J. [162,] 165, 167
     [(C.A.A.F. 1997)].

          The second prohibition of Article 13 prevents
     imposing unduly rigorous circumstances during pretrial
     detention. 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. McCarthy, 47
     M.J. at 165; United States v. James, 28 M.J. 214, 216
     (C.M.A. 1989) (conditions that are “arbitrary or
     purposeless” can be considered to raise an inference
     of punishment).

United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).

     Appellant has the burden of establishing his entitlement to

relief under Article 13, UCMJ.   United States v. Mosby, 56 M.J.

309, 310 (C.A.A.F. 2002).   In reviewing pretrial confinement

issues, we defer to the military judge’s findings of fact,

including a finding there was no intent to punish, where they are

not clearly erroneous.   Id.; King, 61 M.J. at 227.   However, we



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review de novo the application of the facts to the law and

whether Appellant is entitled to credit for violations of the

law.    Mosby, 56 M.J. at 310.

                                 III.

        Appellant asserts that the following factual findings were

clearly erroneous:    (1) Appellant did not complain about his

medical care until July 2004 when he discovered and reported

blood in his urine; and (2) the Government took appropriate

action once Appellant reported blood in his urine.

        Appellant was placed in pretrial confinement on February 27,

2004.    At the time, Appellant was a member of the Medical

Rehabilitation Platoon because he had ruptured his spleen during

training and had not yet been medically cleared to return to full

duty.    He claims that on several occasions he submitted written

requests to the brig staff asking to see a doctor for his monthly

CT scan to monitor the condition of his spleen, but did not

receive an appointment.    On May 2, 2004, Appellant’s civilian

attorney sent a memorandum to brig and unit reviewing authorities

asking that a CT scan be scheduled for Appellant.    When that

failed to get a response, the attorney sent another memorandum on

June 29, 2004.    After Appellant discovered blood in his urine, he

asserts that he consulted with the brig hospital corpsman, but

was unable to secure a medical appointment until his military

attorney intervened.    Appellant was ultimately diagnosed with an


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United States v. Harris, No. 07-0508/MC


enlarged prostate.    In fact, Appellant had his CT scan within two

weeks and consulted with his doctor about his spleen within three

weeks of discovering blood in his urine.

        Appellant admitted that he did not possess any paperwork,

and there was no entry in his medical records, annotating his

need for monthly CT scans.    There is also evidence in the record

that Appellant, who was a knowledgeable and persistent user of

the prison complaint system, was seen daily by medical personnel

and did not express any concern until he discovered blood in his

urine.    The brig corpsman testified that he examined Appellant on

the day he complained of blood in his urine.    As Appellant

appeared to be stable and was scheduled for a CT scan within

three days, the corpsman saw no need to refer Appellant to a

general surgeon.    The military judge’s findings of fact were not

clearly erroneous, and Appellant failed to carry his burden of

establishing that he was denied adequate and necessary medical

care.

                                  IV.

        Appellant also claims that the conditions of his pretrial

confinement in maximum custody were unduly rigorous in that he

was forced to remain in his cell twenty-one hours each day, wear

shackles during his two-hour television break, eat his meals in

his cell, endure roaches and mice in his cell, and endure “dire

heat” due to a lack of air conditioning.    After considering all


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United States v. Harris, No. 07-0508/MC


of the evidence developed at trial, the Court of Criminal Appeals

concluded that Appellant had only established his entitlement to

credit due to his assignment to maximum custody and the attendant

conditions directly related to that assignment.   Harris, 2007 CCA

LEXIS 55, at *7, 2007 WL 1702575, at *2.   The Court of Criminal

Appeals granted him additional day-for-day credit for those

conditions.   2007 CCA LEXIS 55, at *7, 2007 WL 1702575, at *2.

Appellant failed to carry his burden of establishing his

entitlement to relief beyond that already granted by the Court of

Criminal Appeals.

                                V.

     In addition to seeking additional confinement credit,

Appellant complains that the relief granted by the Court of

Criminal Appeals was not meaningful.   By the time the Court of

Criminal Appeals granted him the additional 186 days of credit,

Appellant had served the full term of his confinement and been

out of confinement for over two years.    There was no pending

confinement against which the credits could be applied.    Thus,

Appellant asserts that the Court of Criminal Appeals failed to

grant him appropriate relief.   In his original brief, Appellant

asked this Court to set aside his bad-conduct discharge or, in

the alternative, the forfeiture of all pay and allowances.    By

operation of Article 58b, UCMJ, 10 U.S.C. § 858b (2000), setting

aside the adjudged forfeitures in this case would not provide any


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United States v. Harris, No. 07-0508/MC


actual relief to Appellant.   In his reply to the Government’s

brief, Appellant requested disapproval of confinement and total

forfeitures, setting aside the bad-conduct discharge, setting

aside all punishment, or limiting the sentence that could be

approved following a rehearing.    In light of the offenses of

which Appellant was convicted, we conclude that granting

Appellant such relief would be disproportionate to any harm he

may have suffered.

                                  VI.

     The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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