                         UNITED STATES, Appellee

                                         v.

                 William J. KREUTZER Jr., Sergeant
                        U.S. Army, Appellant

                                  No. 11-0231
                          Crim. App. No. 9601044

       United States Court of Appeals for the Armed Forces

                         Argued October 24, 2011

                        Decided February 2, 2012

STUCKY, J., delivered the opinion of the Court, in which RYAN,
J., and COX, S.J., joined. ERDMANN, J., filed a dissenting
opinion, in which BAKER, C.J., joined.


                                     Counsel


For Appellant: Captain Barbara A. Snow-Martone (argued);
Lieutenant Colonel Jonathan F. Potter (on brief); Colonel Mark
Tellitocci, Lieutenant Colonel Peter Kageleiry, Major Laura R.
Kesler, and Captain Jess B. Roberts.

For Appellee: Captain Chad M. Fisher (argued); Colonel Michael
E. Mulligan (on brief); Major Ellen Jennings and Major Adam S.
Kazin.

Military Judges: P. E. Brownback III (trial) and Patrick J.
Parrish (rehearing)


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Kreutzer, No. 11-0231/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether Appellant was

entitled to additional confinement credit under Rule for Courts-

Martial (R.C.M.) 305, or Article 13, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 813 (2006), after prison officials

at the United States Disciplinary Barracks retained Appellant on

death row despite the United States Army Court of Criminal

Appeals (CCA) setting aside Appellant’s death sentence.   We hold

that Appellant was not entitled to such credit because he was

still subject to lawful confinement as a prisoner found guilty

of a number of offenses.   Therefore, Appellant’s confinement was

outside the scope of R.C.M. 305 and Article 13, which only apply

to pretrial confinees.

                                I.

                                A.

     We previously summarized the result of Appellant’s initial

trial:

          Sergeant (SGT) William J. Kreutzer Jr. opened
     fire with an automatic weapon on personnel in his
     brigade when they were in formation commencing a unit
     run. He was subsequently charged with one
     specification of premeditated murder, eighteen
     specifications of attempted premeditated murder, one
     specification of violation of a lawful general
     regulation, one specification of larceny of Government
     munitions, four specifications of maiming, and
     eighteen specifications of aggravated assault, in
     violation of Articles 118, 80, 92, 121, 124, and 128,
     Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
     918, 880, 892, 921, 924, 928 (2000), respectively.


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United States v. Kreutzer, No. 11-0231/AR


     The charges were referred to a general court-martial
     with instructions that the case was “[t]o be tried as
     a capital case.”
          Kreutzer pleaded guilty to one specification of
     murder while engaged in an act inherently dangerous to
     another (as a lesser included offense of premeditated
     murder), eighteen specifications of assault with a
     loaded firearm (as a lesser included offense of
     attempted premeditated murder), one specification of
     violating a lawful general regulation, and one
     specification of larceny of Government munitions. He
     was convicted of one specification of premeditated
     murder, eighteen specifications of attempted
     premeditated murder, one specification of violating a
     lawful general regulation, and one specification of
     larceny of Government munitions. A unanimous twelve-
     member court of officer and enlisted members sentenced
     Kreutzer to death, a dishonorable discharge,
     forfeiture of all pay and allowances, and reduction to
     E–1. The convening authority approved the sentence as
     adjudged.

United States v. Kreutzer, 61 M.J. 293, 294–95 (C.A.A.F. 2005)

(noting further that the maiming and aggravated assault

specifications were consolidated with the attempted premeditated

murder specifications and provisionally dismissed).

                               B.

     After Appellant’s initial trial, the CCA determined that

the sentence had to be set aside because counsel had been

ineffective by failing to conduct sufficient investigation into

Appellant’s background for sentencing.   United States v.

Kreutzer, 59 M.J. 773, 775 (A. Ct. Crim. App. 2004).

Furthermore, a majority of that court also found that the

military judge’s erroneous denial of Appellant’s request for an



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United States v. Kreutzer, No. 11-0231/AR


expert in mitigation required relief, which the CCA provided by

setting aside all of the contested findings.    Id.

     The CCA only affirmed those findings to:     violation of a

lawful general regulation, larceny of military property,

seventeen specifications of assault with a loaded firearm, and

murder while engaging in an inherently dangerous act to another.

Id. at 784.     A rehearing on findings and sentence was

permitted.    Id.

                                  C.

     After the CCA’s decision, the Government timely moved for

en banc reconsideration, which was denied.    The Judge Advocate

General of the Army then certified the case to this Court.      We

affirmed the CCA’s decision.    Kreutzer, 61 M.J. at 306.

     While the Government’s motion for reconsideration to the

CCA and certification to this Court were pending, Appellant

remained on death row.    Appellant made requests to prison

officials through the appropriate channels to remove him from

death row.    Although prison officials acknowledged Appellant’s

requests, they did not take Appellant off death row.

     Appellant filed for a writ of mandamus with the CCA

requesting an order that he be transferred from death row to the

general population, which the CCA denied for lack of

jurisdiction.    Kreutzer v. Harrison, No. 20040953, 2004 CCA

LEXIS 352, at *4, 2004 WL 5863309, at *2 (A. Ct. Crim. App.


                                   4
United States v. Kreutzer, No. 11-0231/AR


Sept. 24, 2004) (unpublished).   Appellant filed a similar

petition for a writ of mandamus with this Court, and we granted

relief to the extent that Appellant was to be removed “from

death row at the United States Disciplinary Barracks and

place[d] . . . in appropriate custody in light of the

circumstances and status of his case.”   Kreutzer v. United

States, 60 M.J. 453 (C.A.A.F. 2005) (summary disposition).    The

basis of that opinion was that Army regulations prohibited the

commingling of prisoners under a sentence of death with

prisoners who were not.   Id. (citing Dep’t of the Army Reg. (AR)

190-47, The Army Corrections System ¶ 12-6.b (Apr. 5, 2004)).

Shortly after this Court issued the writ of mandamus, Appellant

was removed from death row and classified as a medium custody

inmate.

                                 D.

     At the findings and sentence rehearing, Appellant pled

guilty to sixteen specifications of assault in which grievous

bodily harm was intentionally inflicted with a loaded firearm,

one specification of assault with a dangerous weapon, one

specification of attempted premeditated murder, and one

specification of premeditated murder.    A military judge sitting

as a general court-martial found Appellant guilty of seventeen

specifications of attempted premeditated murder and one

specification of assault with a means likely to produce death or


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United States v. Kreutzer, No. 11-0231/AR


grievous bodily harm.   Appellant was sentenced to a dishonorable

discharge, confinement for life, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.

     During the rehearing, Appellant made a motion for

confinement credit based on, inter alia, a violation of R.C.M.

305 and Article 13.   Appellant argued that he was entitled to

credit for being confined on death row after the CCA set aside

his death sentence.   The military judge denied Appellant’s

motion because he found that Article 13 and R.C.M. 305 had not

been violated, and the CCA, after recognizing Appellant’s motion

below for additional credit, affirmed the findings of guilty and

the sentence without modification, United States v. Kreutzer,

No. 9601044, slip op. at 2 (A. Ct. Crim. App. Nov. 5, 2010).

                                II.

     Appellant argues that his status changed from sentenced

prisoner to pretrial confinee as a matter of law thirty days

after the sentence from his first court-martial was set aside.

He cites our decisions in United States v. Miller, 47 M.J. 352

(C.A.A.F. 1997), and United States v. Combs, 47 M.J. 330

(C.A.A.F. 1997), in support of this proposition.   We do not

agree.   Neither case is apposite to the instant one.

     Miller was a case in which the Court of Criminal Appeals

reduced the appellant’s sentence of confinement to a period of

time which the appellant had already served.   47 M.J. at 360


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United States v. Kreutzer, No. 11-0231/AR


(noting that Miller’s release date was calculated to be the day

after the CCA released its opinion).     Because the appellant had

clearly served his full term of confinement for the offenses of

which he stood convicted, he could no longer be subject to

punishment.   Id.    Therefore, under those circumstances, the

appellant was entitled either to a hearing under R.C.M. 305 or

to be released.     Id. at 361–62.

     In Miller, we recognized that appellants have an interest

in a favorable inchoate decision of the CCA that would result in

an appellant’s release from confinement, but that interest only

becomes sufficiently weighty to warrant action when the Judge

Advocate General decided on a course of action to pursue (appeal

or abide by the CCA decision) or the thirty-day period for

appeal had passed.1    Id.   In this case, Appellant’s sentence to

confinement was not reassessed to a term he had already served;

thus, Miller is inapplicable to the situation presented here.

     In Combs, the CCA set aside the appellant’s unpremeditated

murder conviction, affirmed his convictions for willful

disobedience of a lawful order and battery, and set aside his

sentence.   47 M.J. at 330–31.    Appellant was not confined during


1
  The Miller majority cited Moore v. Adkins, 30 M.J. 249 (C.M.A.
1990), a case in which the Court of Military Review had
dismissed all charges on statute of limitations or factual
sufficiency grounds, leaving the accused without a conviction.
Because Appellant here remained convicted of a number of
offenses, Moore is also inapplicable to this case.

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United States v. Kreutzer, No. 11-0231/AR


a rehearing on the unpremeditated murder charge and sentencing,

but his rank was reduced despite the absence of a lawfully

adjudged sentence.   Id. at 331.   A two-judge plurality of this

Court opined that the appellant was punished under Article 13 by

being stripped of his rank during this period.   Id. at 334.

Chief Judge Cox, concurring in the result, explicitly refused to

find whether this constituted punishment under Article 13 or

simply credit for deprivation tantamount to confinement under

United States v. Allen, 17 M.J. 126 (C.M.A. 1984).   Combs, 47

M.J. at 334 (Cox, C.J., concurring).

     Regardless of whatever precedential value Combs may have,

given its status as a plurality opinion, it too is not on point,

because Combs was released from confinement after his sentence

was set aside.   As with the appellant in Miller, Combs had

already served a period of confinement -- a little over two

years -- that was reasonably likely to have met or exceeded any

sentence he would have received on his remaining charges.

Combs, 47 M.J. at 333 (noting that Combs had served some two

years of his sentence); id. at 330–31 (observing that Combs

remained convicted of battering his three-year-old daughter and

willfully disobeying a lawful order); see also Manual for

Courts-Martial, United States (MCM) pt. IV, ¶¶ 15.e.(5) &

54.e.(7) (1984 ed.) (stating the maximum period of confinement

for willful disobedience of a noncommissioned officer was one


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United States v. Kreutzer, No. 11-0231/AR


year and for battery of a child was two years).      After the

sentence was set aside, the government released Combs instead of

holding him after an R.C.M. 305 hearing, which was within its

prerogative.    47 M.J. at 331.

        In this case, the CCA affirmed Appellant’s convictions of

one specification of murder while engaged in an inherently

dangerous act, seventeen specifications of assault with a loaded

firearm, one specification of violation of a lawful general

order, and one specification of larceny of government property.

Kreutzer, 59 M.J. at 784–85.      The capital sentence was set

aside, and a rehearing was permitted to prove up the greater

offenses and to resentence Appellant.      Id. at 784–85.   Appellant

still had the possibility of a life sentence pursuant to the

offenses to which he pled guilty.       MCM pt. IV, ¶ 43.e.(2) (2008

ed.).

        Article 13, by its terms, only applies to persons “held for

trial.”2    United States v. Inong, 58 M.J. 460, 463 (C.A.A.F.

2003) (“Article 13 prohibits . . . the intentional imposition of

punishment on an accused before his or her guilt is established

at trial . . . .”).    Under the circumstances of this case,

Appellant was a prisoner convicted of very serious offenses with

2
  The dissent’s reliance on Army regulations to interpret whether
the individual is a pretrial confinee or an adjudged prisoner
within the scope of Article 13 is unhelpful, because



                                    9
United States v. Kreutzer, No. 11-0231/AR

a temporarily inchoate sentence.3     He had not requested, and did

not request, release from confinement.     The fact that the

capital sentence had been set aside, for reasons peculiar to

capital litigation, did not convert him from an adjudged

prisoner to a person held for trial as regards the offenses

which the CCA had affirmed.

     At most, the retention of Appellant on death row prompts a

dispute not over punishment prior to trial (the concern of

Article 13) or of the inception and continuation of pretrial

confinement (the concern of R.C.M. 305) but of the proper level

of confinement.   This decision is normally placed in the hands

of correctional authorities, but that discretion may be limited

by regulation.    In our order of January 5, 2005, this Court

recognized that the confinement authorities had abused this

discretion, and we directed Appellant’s release from death row

because AR 190-47, ¶ 12-6.b, prohibited the commingling of death

row prisoners with other prisoners not subject to a death

sentence.   Kreutzer, 60 M.J. at 453.    But Appellant, as an

adjudged prisoner, received the only relief he was entitled to

for a violation of that regulation when this Court ordered that



“regulation[s] cannot change the statute.” Public Lands Council
v. Babbitt, 529 U.S. 728, 745 (2000).
3
  As noted above, that temporarily inchoate sentence was
ultimately resolved to confinement for life, a dishonorable
discharge, forfeiture of all pay and allowances, and reduction
to E-1.

                                 10
United States v. Kreutzer, No. 11-0231/AR

he be taken off death row.   Since Appellant did not come within

the purview of Article 13, UCMJ, he is entitled to no relief

under it.

                               III.

     The judgment of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Kreutzer, No. 11-0231/AR


     ERDMANN, Judge, with whom BAKER, Chief Judge, joins

(dissenting):

     I respectfully dissent from the majority’s conclusion that

Kreutzer was not entitled to relief under Article 13, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 813, or Rule for

Courts-Martial (R.C.M.) 305, because he remained subject to

lawful confinement.    The Army Court of Criminal Appeals (CCA)

set aside all of the contested findings and Kreutzer’s entire

sentence, not just the portion that applied to the death

penalty.   United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim.

App. 2004).1    Even though Kreutzer remained convicted of the non-

capital offenses to which he had pleaded guilty, the CCA

remanded his case for possible retrial on the offenses that were

set aside and a sentence rehearing.

     As Kreutzer was subject to retrial on the offenses that had

been set aside and since he had not been sentenced, his trial

1
     The court affirms the findings of guilty of the
     Specification of Charge II and Charge II and the
     Specification of Charge IV and Charge IV. The
     remaining findings of guilty and the sentence are set
     aside. The same or a different convening authority
     may order a rehearing on Specification 16 of Charge I
     as well as the set aside portions of Specifications 1-
     15, 17, and 18 of Charge I and Charge I, the
     Specification of Charge III and Charge III, and the
     sentence. If the convening authority determines that
     a rehearing on these findings is impracticable, he may
     dismiss those offenses to which appellant pled not
     guilty and order a rehearing on the sentence only.

59 M.J. at 784-85.
United States v. Kreutzer, No. 11-0231/AR


was not over and he reverted to the same status as a pre-trial

confinee, as correctly recognized by The Army Judge Advocate

General (TJAG).2   Therefore the confinement protections of both

Article 13, UCMJ, and R.C.M. 305 were available to him for the

confinement period in question.   Because the government failed

to provide any reasons for keeping Kreutzer on death row while

he was not under sentence of death and since transfer to an

alternative placement at the United States Disciplinary Barracks

(USDB) was sufficient to ensure his presence at trial, I would

reverse the decision of the CCA and grant Kreutzer four days of

credit for each day he was held on death row after the CCA

decision vested.

     The procedural history pertinent to this appeal is as

follows:

     •     March 11, 2004 –- The CCA sets aside the contested
           findings and the sentence;

     •     April 7, 2004 -– The CCA grants the government’s
           motion for a thirty-day extension of time in which to
           file a motion for reconsideration;

     •     May 10, 2004 –- The government files a timely motion
           for reconsideration with the CCA;

     •     June 22, 2004 –- The CCA denies the request for
           reconsideration; TJAG orders Kreutzer released from


2
  On June 22, 2004, following the issuance of the CCA decision,
TJAG ordered Kreutzer released from post-trial confinement,
which reflected a subsequent placement in pre-trial confinement.
On July 13, 2004, TJAG ordered an R.C.M. 305 pre-trial
confinement review.

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United States v. Kreutzer, No. 11-0231/AR


          post-trial confinement; Kreutzer is not moved from
          death row;

     •    June 29, 2004 –- TJAG files a certificate for review
          with the United States Court of Appeals for the Armed
          Forces (CAAF);

     •    July 6, 2004 –- Kreutzer submits an Inmate Request
          Slip to the USDB Commandant inquiring why he remained
          on death row;

     •    July 12, 2004 –- USDB Deputy Commandant responded to
          Kreutzer’s request, stating the Commandant had
          requested a legal review of his case by the Fort
          Leavenworth SJA office;

     •    July 13, 2004 –- TJAG revokes his June 22 order
          releasing Kreutzer from post-trial confinement and
          authorizes an R.C.M. 305 review;

     •    July 22, 2004 –- Kreutzer submits an Inmate Request
          Slip to the Mental Health Clinic requesting assistance
          in being transferred from death row;

     •    July 25, 2004 –- Kreutzer submits an Inmate Request
          Slip asking to speak personally with the USDB
          Commandant regarding his continued confinement on
          death row;

     •    July 26, 2004 –- USDB Commandant informs Kreutzer he
          will conduct an R.C.M. 305 review to determine if
          continued confinement is necessary;

     •    July 27, 2004 –- In response to the notice of the
          R.C.M. 305 review, Kreutzer submits a memorandum to
          the USDB Commandant requesting to be transferred to
          the general population until a final sentence is
          determined;

     •    August 19, 2004 –- Kreutzer submits an Inmate Request
          Slip to the USDB Staff Judge Advocate asking for a
          status update on the R.C.M. 305 hearing;

     •    August 25, 2004 –- USDB Commandant issues his R.C.M.
          305 decision which determined that continued



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United States v. Kreutzer, No. 11-0231/AR


          confinement is necessary but does not address
          Kreutzer’s death row confinement;

     •    September 21, 2004 –- Kreutzer petitions the CCA for
          extraordinary relief asking to be removed from death
          row and placed in the general population;

     •    September 24, 2004 –- The CCA denies the petition for
          lack of jurisdiction due to the certification to CAAF.
          Kreutzer v. Harrison, No. ARMY MISC 20040953 (ARMY
          9601044) (A. Ct. Crim. App. Sept. 24, 2004);

     •    September 29, 2004 –- Kreutzer petitions CAAF for
          extraordinary relief asking to be removed from death
          row;

     •    January 5, 2005 –- CAAF orders Kreutzer removed from
          death row. Kreutzer v. United States, 60 M.J. 453
          (C.A.A.F. 2005);

     •    January 13, 2005 –- Kreutzer is transferred from death
          row to protective custody;

     •    August 16, 2005 –- CAAF affirms the CCA decision and
          order of a rehearing on the sentence based on the
          affirmed pleas or a rehearing on the greater offenses.
          United States v. Kreutzer, 61 M.J. 293 (C.A.A.F.
          2005);

     •    January 6, 2006 –- The convening authority orders
          Kreutzer into pre-trial confinement, where he remained
          until his rehearing.

     At his retrial on the charges that were set aside by the

CCA, Kreutzer requested ten days of sentencing credit for each

of the 280 days he was confined on death row between the date he

believed the CCA decision became effective and the date of his

transfer off death row pursuant to this court’s January 5, 2005

order (April 11, 2004 – January 13, 2005).   The military judge

denied this motion, stating that Kreutzer’s command “was not


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United States v. Kreutzer, No. 11-0231/AR


required to release [him] from death row after the decision by

the Army Court of Criminal Appeals while the case was certified

by TJAG to the Court of Appeals of the Armed Forces [sic].”   The

military judge also found that the USDB commander did not act in

bad faith by keeping Kreutzer on death row, therefore no relief

was warranted.

      This case essentially presents two issues:   first, whether

the government had an obligation to address Kreutzer’s continued

confinement on death row at some point following the CCA

decision which set aside his death sentence;3 and if so, is

Kreutzer entitled to additional pre-trial confinement credit for

the time he was held on death row after that decision.

    a. Continued Confinement on Death Row

      Contrary to the majority’s opinion, this court’s decision

in United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), is

directly applicable to this case.    In Miller, this court held

that when a CCA issues an opinion favorable to the appellant,

two thirty-day periods run concurrently:    the thirty-day period

3
  It is important to note what this case is not about. It is not
about whether Kreutzer should have been released from
confinement after the CCA set aside his conviction for the
contested findings (which included all of the death sentence
eligible offenses) and the sentence. Kreutzer recognized that
he remained convicted of the offenses to which he had pleaded
guilty (all non-death sentence eligible offenses) and throughout
these proceedings has only requested that he be transferred from
death row after his death sentence was set aside pending further
appellate and trial proceedings.


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United States v. Kreutzer, No. 11-0231/AR


to request reconsideration of the CCA decision (C.C.A. R. 19)

and the thirty-day period for certification to this court

(C.A.A.F. R. 19(a), 22(b)).    Miller, 47 M.J. at 361.    If the

service Judge Advocate General decides not to further pursue the

case by requesting reconsideration from the CCA or by filing a

certification with this court, (s)he must notify the convening

authority to comply with the CCA opinion or conduct an R.C.M.

305 hearing.   Id.

     Normally the two thirty-day periods will run concurrently.

However, if, as here, the government requests reconsideration of

the CCA decision, the two thirty-day periods discussed in Miller

are decoupled.   If that request is denied, the government then

has thirty days from the date of the denial in which to certify

the case to this court pursuant to Rule 19 of this court’s rules

of practice and procedure.    C.A.A.F. R. 19.   Once TJAG certifies

the issues to this court or the thirty-day period ends without a

certification filing, whichever is first, Kreutzer’s interest in

the favorable decision of the court below (even if inchoate)

required either that he be transferred from death row or a

hearing under R.C.M. 305 be held to determine whether his

continued confinement on death row was appropriate.      Miller, 47

M.J. at 362.

     In Kreutzer’s case TJAG filed a timely request for

reconsideration at the CCA, which was denied.    On June 28, 2004,


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United States v. Kreutzer, No. 11-0231/AR


TJAG certified the issues to this court.      Once the certification

was filed the government was required to conduct an R.C.M. 305

hearing to determine whether Kreutzer should remain on death row

pending the government’s appeal.       Kreutzer first requested a

transfer from death row on July 6, 2004.      While an R.C.M. 305

hearing was eventually conducted in August 2004, the decision

did not address Kreutzer’s sole request –- that he be

transferred from death row.   Instead, the R.C.M. 305 decision

determined that further confinement was necessary –- a status

that Kreutzer had never challenged.      Kreutzer then remained

confined on death row until seven days after this court ordered

his transfer in January 2005.   Kreutzer v. United States, 60

M.J. 453 (C.A.A.F. 2005).

     While the majority infers that Kreutzer remained subject to

post-trial confinement, that conclusion is not consistent with

the action of the CCA which set aside his sentence.4      According


4
  The majority notes that “Article 13, by its terms, only applies
to persons ‘held for trial,’” citing United States v. Inong, 58
M.J. 460 (C.A.A.F. 2003). United States v. Kreutzer, __ M.J. __
(9) (C.A.A.F. 2012). While I agree that Article 13, UCMJ,
applies to persons “held for trial,” the difference in our
respective positions is when the trial terminates. I believe
that a trial under the UCMJ is not over until all charges have
been resolved and the sentence adjudged. The majority asserts
that the trial is over once guilt is established on some of the
charges, and Article 13, UCMJ, is therefore no longer
applicable. Id. at __ (9) (“‘Article 13 prohibits . . . the
intentional infliction of punishment on an accused before his or
her guilt is established at trial. . . .’” (quoting Inong, 58
M.J. at 463)). As support for this principle, Inong cites

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United States v. Kreutzer, No. 11-0231/AR


to Dep’t of the Army, Reg. 190-47, Military Police, The Army

Corrections System, para. 3-1 (June 15, 2006) [hereinafter AR

Reg. 190-47], an accused who is confined pending preferral or

disposition of charges or trial by court-martial is a pre-trial

prisoner.   An accused whose sentence has been announced in open

court but not approved by the convening authority is an adjudged

prisoner.   Id.   An accused becomes a sentenced prisoner when the

convening authority takes action to approve the confinement

portion of the sentence.   Id.

     The facts in United States v. Combs, 47 M.J. 330 (C.A.A.F.

1997), a plurality decision that was concurred in by then-Chief

Judge Cox, are directly analogous to Kreutzer’s situation.    The

Court of Military Review set aside some, but not all, of the

findings of guilt against Combs and set aside his sentence.    Id.

at 330.   While he was awaiting rehearing, Combs was stripped of

his rank, pay, and privileges, despite his sentence being set



United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000). However,
Fricke contains no such statement nor inference and in fact
recites the general rule that “Article 13, UCMJ prohibits both
the purposeful imposition of punishment on a military accused
prior to court-martial and pretrial confinement conditions which
are more rigorous than the circumstances required to ensure an
accused’s presence.” Id. at 154 (citing United States v.
McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)). None of the more
recent Article 13, UCMJ, cases decided by this court have
employed or referenced that language from Inong. See United
States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2011); United States
v. Williams, 68 M.J. 252 (C.A.A.F. 2010); United States v.
Adcock, 65 M.J. 18 (C.A.A.F. 2007); United States v. King, 61
M.J. 225 (C.A.A.F. 2005).

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United States v. Kreutzer, No. 11-0231/AR


aside.   Id. at 332.   Like Kreutzer, Combs was “‘trapped in the

twilight of the court-martial process . . . adjudicated but

unsentenced,’” after the CCA set aside his contested findings

and his entire sentence.   Id. at 331 (citation omitted).      This

court found an Article 13, UCMJ, violation when Combs was

stripped of his rank before he was sentenced.      Id. at 334.     This

punishment, like Kreutzer’s confinement on death row without a

sentence of death, constituted “‘egregious, intentional conduct

by command where there is no evidence of a legitimate, non-

punitive objective for the conduct complained of, the apparent

singling out of an accused for personal humiliation, and

restrictions on liberty so oppressive as to be more consistent

with the status of prisoner.’”   Id. at 332 (emphasis omitted)

(citation omitted).

     At the time TJAG certified the issues to this court,

Kreutzer had not been sentenced and the sentence had obviously

not been approved by the convening authority.      At that point

Kreutzer reverted to being a pre-trial prisoner and, under

Miller, the government was required to conduct an R.C.M. 305

hearing to determine whether he should remain on death row

pending the government’s appeal.       The 199 days Kreutzer remained

on death row while not subject to a sentence of death clearly




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United States v. Kreutzer, No. 11-0231/AR

violated AR Reg. 190-47, para. 12-6.b., which prohibits the

commingling of death sentence and non-death sentence confinees.5

    b. Entitlement to Credit

      Article 13, UCMJ, prohibits the imposition of punishment

prior to trial and conditions of arrest or pre-trial confinement

that are more rigorous than necessary to ensure the accused’s

presence at trial.   In King, 61 M.J. at 227-28, we examined the

scope of Article 13, UCMJ:

           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, UCMJ, 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).




5
  The period between the date that TJAG certified the case to
this court (June 29, 2004) and the date that Kreutzer was
removed from death row (January 13, 2005) constitutes 199 days.

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United States v. Kreutzer, No. 11-0231/AR

     The second prong of Article 13, UCMJ, prohibits conditions

of confinement that are more rigorous than necessary to ensure

the accused’s presence at trial.     Confinement conditions that

are “‘arbitrary or purposeless’” may raise an inference of

punishment under Article 13, UCMJ.    King, 61 M.J. at 228

(quoting James, 28 M.J. at 216).     In Zarbatany, 70 M.J. 169, we

recognized that the primary mechanism for addressing violations

of Article 13, UCMJ, has been confinement credit.    Id. at 174

(citing King, 61 M.J. 225).   We noted that “[t]he drafters of

the R.C.M. subsequently ‘explicitly recognized’ this practice

with the adoption of R.C.M. 305(k) in the 1984 Manual for

Courts-Martial, United States (MCM).”     Id.

     There can be little dispute that Kreutzer’s continued

confinement on death row was more rigorous than necessary to

ensure his presence at his retrial.     Under the circumstances of

this case, a transfer from death row would result in Kreutzer

being placed in protective custody or some other placement

segregated from sentenced prisoners.6    It is difficult to argue


6
  In our January 5, 2005, order we ordered that Kreutzer be
“remove[d] . . . from death row . . . and place[d] . . . in
appropriate custody in light of the circumstances and status of
his case.” 60 M.J. at 453. Upon his transfer from death row on
January 13, 2004, Kreutzer was initially placed in protective
custody. As Kreutzer was not a sentenced prisoner he could not
be placed in the general prison population. His initial
placement in protective custody was not unreasonable since the
USDB at Leavenworth is not authorized to hold pre-trial
prisoners absent special circumstances and does not have a

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United States v. Kreutzer, No. 11-0231/AR

that any level of confinement within the USDB would not be

sufficient to ensure his presence at his retrial.   It is also

difficult to argue that conditions for death row prisoners are

not more rigorous than those of other prisoner classifications.

USDB Regulation 600-1 states that death sentence prisoners are

placed in hand-irons when outside of their living area and in

full restraints when outside of the Special Housing unit, and

are required to wear an orange jumpsuit instead of the regular

brown jumpsuit which constitutes a prisoner’s duty uniform.

USDB Reg. 600-1, Manual for the Guidance of Prisoners para. 13-

1, 13-3, 13-4 (Aug. 1, 2002).   Additionally, an affidavit from a

former noncommissioned officer in charge of the USDB mental

health clinic stated the differences between protective custody

prisoners and death row prisoners were significant.   While

protective custody prisoners were allowed to socialize, dine,

and attend group therapy together, death row prisoners remained

in their cells for twenty-three hours a day, were allowed one

hour of recreation with one other prisoner per day, and were

required to dine alone in their cells.   Death row prisoners also

were not eligible for group therapy.




dedicated section for pre-trial prisoners. See AR Reg. 190-47
para. 2-2, 3-2.c. Once this court issued its decision on the
certified issue, the Army took the required steps to transfer
Kreutzer to a pre-trial facility.

                                12
United States v. Kreutzer, No. 11-0231/AR

     In Kreutzer’s case the government admits that there is no

evidence on the record as to why he remained confined on death

row following the CCA’s decision.    The military judge’s finding

that the government was not required to transfer Kreutzer from

death row once TJAG certified the issues to this court was

incorrect as a matter of law.   I would find that Kreutzer is

entitled to relief under the second prong of Article 13, UCMJ,

as his continued confinement on death row was arbitrary and

purposeless and more rigorous than necessary to ensure his

presence at his retrial.7

     The government has argued that meaningful relief is

unavailable in this case since Kreutzer received a life

sentence.   However, there remains the possibility that his life

sentence will be converted into a term of years at some point in


7
  I note that this court also could find a violation under the
first prong of Article 13, UCMJ. That prong can be satisfied by
finding an intent to punish or by “examining the purposes served
by the restriction or condition, and whether such purposes are
‘reasonably related to a legitimate governmental objective.’”
King, 61 M.J. at 227. As noted, the legitimate governmental
purpose in this area is clearly set forth in AR Reg. 190-47
para. 12-6.b., which provides that prisoners sentenced to death
will not be commingled with other than death sentence prisoners.
While “confinement in violation of service regulations does not
create a per se right to sentencing credit,” Adcock, 65 M.J. at
23, violation of a regulation can be considered when assessing
whether there was an Article 13, UCMJ, violation. King, 61 M.J.
at 228. Here there was no evidence on the record as to why
Kreutzer remained confined on death row following the CCA’s
decision, and the government was unable to identify any
legitimate governmental objective or security necessity served
by his continued confinement on death row.

                                13
United States v. Kreutzer, No. 11-0231/AR

the future.   See Article 74(a), UCMJ, 10 U.S.C. § 874(a) (2006);

Dep’t of the Army, Reg. 15-130, Boards, Commissions, and

Committees, Army Clemency and Parole Board para. 3-1 (Oct. 23,

1998).   As such, relief in the form of sentencing credit under

Article 13, UCMJ, is appropriate for this type of violation.

Accordingly, under the unique circumstances of this case, I

would award four days of sentencing credit for each of the 199

days Kreutzer was confined on death row after the case was

certified by the government to this court until his transfer

from death row pursuant to this court’s order.8




8
  In King, this court awarded three-for-one confinement credit
for the period in which King was kept in solitary segregation
during pre-trial confinement where the government provided no
evidence it explored alternatives to that confinement and no
explanation for why he was so confined. 61 M.J. at 229.
Comparatively, the government’s actions in this case warrant an
award greater than the three-for-one credit awarded in King.

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