          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                          Technical Sergeant JIMMY L. WILSON
                                  United States Air Force

                                         ACM 37897 (rem)

                                          30 January 2014

                                           ____ M.J. ____

         Sentence adjudged 21 January 2011 by GCM convened at Moody Air Force
         Base, Georgia. Military Judge: Terry A. O’Brien.

         Approved Sentence: Bad-conduct discharge, confinement for 3 months,
         and reduction to E-2.

         Appellate Counsel for the Appellant: Captain Thomas A. Smith (argued);
         Colonel Patrick J. Wells; and Major Nathan A. White.

         Appellate Counsel for the United States: Major Daniel J. Breen (argued);
         Colonel Don M. Christensen; Lieutenant Colonel C. Taylor Smith;
         Lieutenant Colonel Linell A. Letendre; Major Scott C. Jansen; Major Brian
         C. Mason; Major Erika L. Sleger; and Gerald R. Bruce, Esquire.

                                                 Before

                              ROAN, HARNEY, and MITCHELL
                                 Appellate Military Judges

                                          UPON REMAND

                 This opinion is subject to editorial correction before final publication.



MITCHELL, Judge:

       This case is before us on remand from our superior court. On 21 January 2011, a
general court-martial composed of officer and enlisted members convicted the appellant,
contrary to his pleas, of one specification of violating a lawful order, in violation of
Article 92, UCMJ, 10 U.S.C. § 892. The court sentenced the appellant to a bad-conduct
discharge, confinement for 3 months, and reduction to E-2. The convening authority
approved the sentence as adjudged.

       The appellant initially assigned as error that he was subjected to cruel and unusual
punishment in violation of Article 55, UCMJ, 10 U.S.C. § 855. The appellant served his
sentence to confinement in a local civilian jail contracted by the Air Force to house
military prisoners because no local military confinement facility existed. While in
confinement he was segregated from other prisoners. In an unpublished decision, we
examined this alleged error and found it to be without merit. United States v. Wilson,
ACM 37897 (A.F. Ct. Crim. App. 12 October 2012) (unpub. op.). There was evidence in
the record that local confinement officials implemented the segregation so as to prevent a
violation of Article 12, UCMJ, 10 U.S.C. § 812, by ensuring the appellant was never in
immediate association with foreign nationals. We affirmed the findings and sentence.

       Our superior court reversed our decision and remanded for consideration of the
following specified issue:

        Whether Article 12, UCMJ, applies to the circumstance where an accused
        and/or convicted member of the armed forces is confined in immediate
        association with foreign nationals in a state or federal facility within the
        continental limits of the United States; and, whether the record in this case
        permits such a conclusion to be drawn without the necessity of further fact-
        finding.

United States v. Wilson, __ M.J. __ No. 13-0157/AF (Daily Journal 17 July 2013).

       We ordered oral argument on this issue and received additional briefs from the
parties. We conclude that Article 12, UCMJ, applies to members of the armed forces
when placed in confinement in a state or federal facility within the continental United
States due to an adjudged court-martial sentence.1

                                             Article 12, UCMJ

       “No member of the armed forces may be placed in confinement in immediate
association with enemy prisoners or other foreign nationals not members of the armed
forces.” Article 12, UCMJ.

       The plain language of the statute does not set any geographical limits to its
application, so a plain reading of the statute would arguably render resorting to legislative

1
 When a court-martial adjudges confinement, Article 58, UCMJ, 10 U.S.C. § 858, authorizes the use of “any place
of confinement under the control of any of the armed forces or in any penal or correctional institution under the
control of the United States, or which the United States may be allowed to use.”



                                                       2                                      ACM 37897 (rem)
history unnecessary.         Compare United States v. Great Northern Ry. Co.,
 287 U.S. 144, 154-55 (1932) (“In aid of the process of construction we are at liberty, if
the meaning be uncertain, to have recourse to the legislative history of the measure and
the statement by those in charge of it during its consideration by the Congress.”) with
Ratzlaf v. United States, 510 U.S. 135, 147-48 (1944) (“[W]e do not resort to legislative
history to cloud a statutory text that is clear.”) and INS v. Cardoza-Fonseca,
480 U.S. 421, 452-53 (1987) (Scalia, J., concurring) (“Judges interpret laws rather than
reconstruct legislators’ intentions. Where the language of those laws is clear, we are not
free to replace it with an unenacted legislative intent.”). Legislative history can also be
used, however, to refute an assertion that a meaning contrary to the plain meaning of a
statute was “intended.” See e.g., Darby v. Cisneros, 509 U.S. 137, 147 (1993)
(“Recourse to the legislative history . . . is unnecessary in light of the plain meaning of
the statutory text. Nevertheless, we consider that history briefly because both sides have
spent much of their time arguing about its implications.”). Because the parties have
resorted to the legislative history of Article 12, UCMJ, to argue their respective
interpretations, we also examine it to inform our analysis.

                                   Legislative History

       In July 1948, then-Secretary of Defense James Forrestal appointed a committee to
draft a uniform code of military justice. S. REP. No. 486, 81st Cong., 1st Sess., at 4
(1949) (hereinafter “Senate Report”) and Uniform Code of Military Justice: Hearings on
H.R. 2498 Before a Subcomm. of the H. Comm. on Armed Servs., 81st Cong., at 596-99
(1949), reprinted in Index and Legislative History, Uniform Code of Military Justice
(1950) (not separately paginated) (hereinafter “House Subcommittee Hearings”). The
committee included Mr. Felix Larkin, Assistant General Counsel, Office of the Secretary
of Defense, who chaired a working group of approximately 15 persons, including officer
representatives of each of the services and 5 civilian lawyers with service experience.
Senate Report, at 4. The new code was designed to, among others things, supersede and
revise the Articles of War, including the Articles of War recently revised by amendment
to the Selective Service Act of 1948. House Subcommittee Hearings, at 600 (statement
of Prof. Edmund Morgan, Jr.).

       Several of the committee members testified during hearings before the House and
Senate Armed Services Committees. The testimony from these hearings, held between
March and May of 1949, is a source of legislative history that military courts have turned
to, when necessary, to resolve the meaning or scope of a provision of the code. See, e.g.,
United States v. Wise, 64 M.J. 468, 475-76 (C.A.A.F. 2007) (examining House
Subcommittee Hearings to determine meaning of the term “immediate association” under
Article 12, UCMJ); United States v. Antonelli, 35 M.J. 122, 124-35 (C.A.A.F. 1992)
(examining House Subcommittee Hearings to conclude Article 121, UCMJ, 10 U.S.C. §
921, offense of larceny encompassed and consolidated what historically had been
separate common law offenses); United States v. Graham, 16 M.J. 460,


                                             3                              ACM 37897 (rem)
462-63 (C.M.A. 1983) (describing discussion in House Subcommittee Hearings on
Article 87, UCMJ, 10 U.S.C. § 887, as “cryptic” but still using the “expressed
justification” of missing movement offense to determine its scope).

       The legislative history of Article 12, UCMJ, reveals that, like many provisions of
the code, it was based upon an existing Article of War, specifically Article of War 16
(A.W. 16). The language modeled from A.W. 16, however, was itself of recent vintage,
appearing for the first time the year prior, as a result of a floor amendment, in the 1948
amendment to the Selective Service Act.2 That provision provided: “No person subject
to military law shall be confined with enemy prisoners or any other foreign nationals
outside of the continental limits of the United States.” See Manual for Courts-Martial,
United States, Chapter V, ¶ 19.a. (1949 ed.).

       Despite its recent enactment, A.W. 16 was not transplanted in its entirety when the
committee drafted its Article 12, UCMJ, counterpart. As Mr. Larkin explained during his
testimony at the House subcommittee hearings, he did not think the floor amendment to
A.W. 16 was “thought through completely” and noted it was limited to confinement
overseas and could be interpreted too broadly to prohibit confinement in the same
building or ship, regardless of segregation. House Subcommittee Hearings, at 914. As
shown by the following explanation during the hearings, these concerns resulted in a
deliberate modification of the statutory language:

                 Mr. Larkin: This article, as Mr. Smart points out, was a floor
           amendment, and it read a little differently as passed by the Congress last
           year. As it is in the Public Law 759 [amending A.W. 16], it says—

                  No person subject to military law shall be confined with enemy
           prisoners or any other foreign nationals outside the continental limits of the
           United States.

                    Now we have changed the wording and said—

                  No member shall be placed in confinement in immediate
           association—

                 because as it read it conceivably could cause a number of
           confinement difficulties.

                 I do not think it was thought through completely when the floor
           amendment was offered. It was limited in the floor amendment to
           confinement overseas. The service might have a difficult time overseas if

2
    Prior to 1948, no Article of War addressed confinement with enemy prisoners or other foreign nationals.


                                                           4                                       ACM 37897 (rem)
      they could not confine a person with enemy prisoners in that they could not
      even keep them in the same jail.

             There may not be more than one jail or place of confinement within
      the area. Then they just could not restrain them or confine them at all.

             We thought we kept the sense of the present law but made it a little
      more flexible by saying “in immediate association” which in effect would
      mean you could keep them in the same jail by at least segregating them in
      different cells. It further was proposed for the Army, with no thought of the
      Navy—the Navy you can visualize might have a great difficulty aboard
      ship when they captured an enemy vessel and took foreign nationals.

             Then they could not keep any offender of their own in the same brig
      on ship board. We have changed that. And we have deleted, if you will
      notice, “outside the continental limits” and made it apply everyplace, but
      prohibit incarceration in close association but not with because “with” has
      the connotation that you could not keep them in the same prison and there
      may be only one. They are the only differences between what is in the law
      now and this article.

      House Subcommittee Hearings, at 914-15 (emphasis added).

        In light of the plain meaning of Article 12, UCMJ, which contains no geographical
limitation whatsoever, and made further clear by its legislative history, we conclude that
Article 12, UCMJ, applies to members of the armed forces “everyplace,” to include
confinement facilities within the continental United States.

           Relationship between Article 12, UCMJ, and Article 58(a), UCMJ

       Although the Government initially argued that Article 12, UCMJ, proscribes only
confinement in immediate association with “enemy” foreign nationals, during oral
argument the Government also contended that Article 58(a), UCMJ, 10 U.S.C. § 858(a),
takes precedence over Article 12, UCMJ, such that Article 12, UCMJ, has no
applicability to military members confined outside of the custody of the armed forces.
Article 58(a), UCMJ, provides:

             Under such instructions as the Secretary concerned may prescribe, a
      sentence of confinement adjudged by a court-martial or other military
      tribunal, whether or not the sentence includes discharge or dismissal, and
      whether or not the discharge or dismissal has been executed, may be carried
      into execution by confinement in any place of confinement under the
      control of any of the armed forces or in any penal or correctional institution


                                            5                               ACM 37897 (rem)
      under the control of the United States, or which the United States may be
      allowed to use. Persons so confined in a penal or correctional institution
      not under the control of one of the armed forces are subject to the same
      discipline and treatment as persons confined or committed by the courts of
      the United States or of the State, District of Columbia, or place in which the
      institution is situated.

      In support of this position, the Government cites to an unpublished order from the
United States Court of Appeals for the District of Columbia, Webber v. Bureau of
Prisons, No. 02-5113, 2002 WL 31045957 (D.C. Cir. Apr. 4, 2002), which held:

      Article 58 of the Uniform Code of Military Justice states categorically that
      military prisoners housed in Bureau of Prisons facilities shall be subject to
      the same treatment as their civilian counterparts. See 10 U.S.C. § 858(a).
      It does not create an exception concerning confinement with foreign
      nationals, nor does Article 12 of the Code provide that its prohibition
      against such confinement survives Article 58’s same-treatment rule. See id.
      § 812. Thus, by its terms, Article 58 trumps Article 12 . . . .

       We disagree that the general “same discipline and treatment” provision of
Article 58(a), UCMJ, operates to render Article 12, UCMJ, a nullity for military members
serving a court-martial sentence in a facility not under military control. First, we do not
believe the unique requirements of Article 12, UCMJ, are appropriately characterized as a
matter of “discipline and treatment” falling within the parameters of Article 58(a),
UCMJ. Second, even if immediate proximity to enemy prisoners or other foreign
nationals were considered “discipline and treatment,” there is no reason the general rule
of Article 58(a), UCMJ, should trump the specific prohibition of Article 12, UCMJ. To
the contrary, applying ordinary canons of statutory construction, the more specific
provision trumps the general one. See Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the
specific governs the general.”). Consequently, even if Articles 12 and 58(a), UCMJ,
were read as contradictory, we would nevertheless conclude that Article 12, UCMJ, with
its specific proscription of confining military members in immediate association with
enemy prisoners or other foreign nationals, should be construed as an exception to the
general “same-treatment” rule.

       Article 12, UCMJ, applies only to “member[s] of the armed forces.” Although
Article 58(a) expressly permits confinement of military members outside of military
custody prior to the execution of a discharge, the execution of such a discharge severs not
only their status as members of the armed forces, but also, unlike members serving
confinement in military custody, ends their being subject to the code.                  See
Article 2(a)(7), UCMJ, 10 U.S.C. 802(a)(7). Once a military member is no longer subject
to the code, the statutory protections of Article 12, UCMJ, no longer apply. In the


                                             6                              ACM 37897 (rem)
present case, the appellant was still subject to the code awaiting appellate review of his
case when he was segregated for the evidenced reason of preventing an Article 12,
UCMJ, violation.

                             Application of Article 12, UCMJ

        On 21 January 2011, a general court-martial sentenced the appellant, inter alia, to
3 months of confinement. On 22 January 2011, trial defense counsel submitted a request
for deferment of confinement and reduction in grade to the convening authority. Trial
defense counsel argued that confinement should be deferred because the appellant would
be held in “de-facto solitary confinement” while in the civilian jail. On 21 March 2011,
the appellant submitted a letter to the convening authority describing his conditions of
confinement: “Due to the fact that I am from Moody AFB, I spend 23 hours a day locked
in isolated confinement.” His counsel argued for clemency based in part on “the fact that
[Airman] Wilson ha[d] been held in solitary confinement while in jail.” He also attached
an affidavit from the Cook County Jail Administrator. In the affidavit, the administrator
declared, “The Cook County Jail has no system of identifying foreign nationals,” and as
of “[9 December 2010], the [jail] will no longer allow Moody inmates to go into general
population. They will spend their time [t]here in an isolation cell; they will still have
every privilege as other inmates with the exclusion of television.” The convening
authority denied the appellant’s request and approved the adjudged sentence.

                                         Analysis

        We review de novo whether an appellant’s post-trial confinement violates
Article 12, UCMJ. United States v. Wise, 64 M.J. at 474. “A prisoner must seek
administrative relief prior to invoking judicial intervention to redress concerns regarding
post-trial confinement conditions.” Id. at 469 (citing United States v. White, 54 M.J. 469,
472 (C.A.A.F. 2001)). This administrative exhaustion requirement furthers two related
goals: the resolution of the issue at the lowest level and the development of the record
for later appellate review. Id. at 471 (citing United States v. Miller, 46 M.J. 248, 250
(C.A.A.F. 1997)). “Since a prime purpose of ensuring administrative exhaustion is the
prompt amelioration of a prisoner’s conditions of confinement, courts have required that
these complaints be made while an appellant is incarcerated.” Wise, 64 M.J. at 471.
Unless there are some unusual or egregious circumstances, an appellant with a complaint
about post-trial confinement conditions must show he has exhausted the prisoner-
grievance system at the confinement facility and that he has petitioned for relief under
Article 138, UCMJ. Id. (citing White, 54 M.J. at 472).

       The appellant never sought administrative relief or even alleged that he was ever
in immediate association with any foreign national. His complaints were instead directed
towards the fact he was placed in solitary confinement. The appellant has not raised an
allegation of a violation of Article 12, UCMJ, in any of his appellate pleadings before this


                                             7                               ACM 37897 (rem)
court.3 Relief is not warranted for the following reasons: his failure to exhaust
administrative remedies, the lack of unusual or egregious circumstances, and his lack of a
request for relief for any alleged Article 12, UCMJ, violation.4

                                               Limitations on Remand

       The appellant seeks to renew his argument that his post-trial confinement
condition of 23 hours a day in administrative segregation constituted cruel and unusual
punishment under the Eighth Amendment.5 The remand to this Court was limited to the
specified issue of the application of Article 12, UCMJ, and whether any further fact-
finding was required on the Article 12, UCMJ, issue. On a remand, we are limited to
only taking action that conforms to the issue on remand. United States v. Riley,
55 M.J. 185, 188 (C.A.A.F. 2001). Therefore, we are not permitted to address the Eighth
Amendment argument again.

        For the sake of clarity to all the parties, we summarize our holding. Our earlier
opinion concluded that the appellant had not demonstrated the prison officials acted with
deliberate indifference and therefore, did not prevail on his Eighth Amendment claim.
We relied on the affidavit, submitted by the appellant, which implied Cook County Jail
officials decided to place military prisoners in isolation cells in order to prevent
violations of Article 12, UCMJ, since they did not have a method of identifying foreign
nationals. We conclude for the reasons set forth in our first opinion that the appellant in
this case does not prevail on his claim of cruel and unusual punishment. United States v.
Wilson, ACM 37897 (A. F. Ct. Crim. App. 12 October 2012) (unpub. op.).

                                                   Conclusion

       The approved findings and sentence 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); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000).




3
  At oral argument, appellant’s counsel specifically rejected the argument that Article 12, UCMJ, 10 U.S.C. § 812,
was violated.
4
  Furthermore our superior court has held that a “single strand of concertina wire represents a real boundary” which
for Article 12, UCMJ, analysis prevents “immediate association.” United States v. Wise, 64 M.J. 468, 474. We are
therefore confident that being held in an isolation cell prevents any “immediate association” with foreign nationals.
5
  U.S. CONST. amend. VIII.


                                                         8                                        ACM 37897 (rem)
Accordingly, the approved findings and sentence are

                                     AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                           9          ACM 37897 (rem)
