          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201600207
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                        MATTHEW A. HARRIS
                Lance Corporal (E-3), U.S. Marine Corps
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel David M. Jones, USMC.
   Convening Authority: Commanding Officer, Marine Corps Air
                       Station Beaufort, SC.
 Staff Judge Advocate’s Recommendation : Major Brett R. Swaim,
                               USMC.
     For Appellant: Lieutenant Jacob E. Meusch, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Commander
                Justin C. Henderson, JAGC, USN.
                      _________________________

                         Decided 15 August 2017
                         _________________________

   Before G LASER -A LLEN , M ARKS , and F ULTON , Appellate Military
                                Judges
                        _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   FULTON, Judge:
   A military judge sitting as a general court-martial convicted the
appellant, in accordance with his pleas, of one specification each of attempted
robbery, desertion, and aggravated arson, in violation of Articles 80, 85, and
                        United States v. Harris, No. 201600207


126, Uniform Code of Military Justice (UCMJ).1 The military judge sentenced
the appellant to eight years’ confinement, reduction to pay grade E-1,
forfeiture of all pay and allowances, and a dishonorable discharge. In
accordance with a pretrial agreement, the convening authority suspended all
confinement in excess of 72 months. The convening authority approved the
sentence and, except for the punitive discharge, ordered it executed.
   In his sole assignment of error, the appellant alleges that the military
judge erred by granting him only 23 days of confinement credit where the
government failed to comply with RULE FOR COURTS-MARTIAL (R.C.M.)
305(i)(2)(D), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) for
126 days. After careful consideration of the record of trial, the pleadings of
the parties, and oral argument, heard on 6 April 2017 at George Mason
University’s Antonin Scalia Law School, we conclude that the findings and
the sentence are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant occurred.2
                                   I. BACKGROUND
   To avoid cleaning his on-base residence and paying for damages to it, the
appellant burned his government quarters. Facing legal action for the arson,
he deserted and attempted to rob a gas station.
   On 12 May 2015, U.S. Marshals arrested the appellant and returned him
to the military, at which time the appellant’s commander placed him in
pretrial confinement.3 On 20 May 2015, the initial reviewing officer (IRO)
conducted a hearing in accordance with R.C.M. 305(i)(2) and concluded that
the appellant should remain in confinement.4
    The IRO drafted a memorandum detailing his conclusion, attaching his
factual findings to the memorandum as Enclosure (1).5 The factual findings
that supported continued confinement stated in their entirety: “Based on
severity of the accusation Article 126 (Aggravated Arson) and Evidence of
Desertion letter and 72-Hour letter and missing for 3-weeks.”6




   1   10 U.S.C. §§ 880, 885, and 926 (2012).
   2   Arts. 59(a) and 66(c), UCMJ.
   3   Record at 397.
   4   Appellate Exhibit (AE) XIX at 17-20.
   5   Record at 416-17; AE XIX at 2, 17-20.
   6   AE XIX at 20.


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                        United States v. Harris, No. 201600207


   By 9 September 2015, the day of the arraignment, the appellant had
received a copy of the IRO’s memorandum. Enclosure (1), however, was not
turned over to the appellant.
    At arraignment, counsel for the appellant and the government submitted
a draft trial management order. The parties were in agreement on the
relevant milestones but had not yet agreed on a trial date. The parties agreed
to litigate motions on 29 October. The draft order anticipated a second
motions hearing on 2 December.
     Defense counsel submitted a discovery request on 15 September 2015,
asking for, among other things, copies of all R.C.M. 305 matters, “to include .
. . the 7-day review officer’s memorandum detailing his conclusions regarding
any continued pretrial confinement and all factual findings on which they are
based.”7 The government responded on 7 October 2015, saying in relevant
part that, “Copies of . . . the 7-day review officer’s memorandum detailing his
conclusions any continued pretrial confinement will be provided.”8 Two days
later, defense counsel emailed government counsel a list of discovery items
that the defense counsel viewed as still outstanding. The list did not include
the IRO’s Memorandum or Enclosure (1).9
   The parties again appeared before the military judge, as scheduled, on 29
October. Although the parties litigated several motions, defense counsel did
not move to compel discovery of Enclosure (1). Neither party mentioned the
IRO’s memorandum or Enclosure (1) at the motions hearing.
   Later, the parties agreed to forgo the Article 39(a), UCMJ, session
scheduled for 2 December, as they had entered pretrial agreement
negotiations.10
   On 17 December 2015, the convening authority approved the appellant’s
pretrial agreement offer.11 The pretrial agreement specified that defense
counsel could file pretrial motions up until seven days before the court-
martial.12 On 12 January 2016, seven days before trial, the appellant filed a
motion for confinement credit based on the government’s failure to comply
with R.C.M. 305(i)(2)(D), which requires the government to provide the IRO’s



   7   AE V at 17; AE XIX at 2.
   8   AE V at 39.
   9   AE XIX at 24.
   10   Record at 217-18.
   11   AE XX at 7.
   12   Record 394; AE XX at 3.


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findings to an accused on request.13 On 16 January 2016, government counsel
complied with R.C.M. 305(i)(2)(D) by providing the appellant with a copy of
Enclosure (1).14
   The appellant argued that he was entitled to 126 days of credit. This
number reflects one day of credit for every day between (and including) the
day the appellant’s counsel requested the memorandum and the day he
received Enclosure (1).
   The military judge found that the government’s failure to provide
Enclosure (1) to the defense was a technical violation of R.C.M. 305(i)(2)(D). 15
But he declined to award the appellant a “windfall” by granting credit for all
126 days.16 Instead, he awarded only 23 days of confinement credit—from 7
October 2015, when the government first responded to the defense discovery
request, to 29 October 2015, the date of the first post-arraignment Article
39(a) session.17
                                    II. DISCUSSION
    The appellant alleges that the military judge erred by refusing to award
confinement credit for the full 126 days from the initial discovery request
until the defense received Enclosure (1) shortly before trial. We review the
military judge’s determination for an abuse of discretion.18 We review his
findings of fact under a clearly erroneous standard.19 Legal findings,
including whether an appellant is entitled to pretrial confinement credit, are
reviewed de novo.20
    R.C.M. 305(i)(2)(D) requires that the IRO’s written conclusions, including
the factual findings on which they are based, be provided to the accused on
request. If the government fails to comply with this provision, R.C.M. 305(k)
sets forth the remedy: “an administrative credit against the sentence
adjudged for any confinement served as the result of such noncompliance.


   13   AE XVIII at 1.
   14   AE XIX at 17.
   15   Record at 417-19.
   16   Id. at 420.
   17   Id.
   18   United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F. 2007).
    19 United States v. Diaz, 61 M.J. 594, 602 (N-M. Ct. Crim. App. 2005), aff’d on

other grounds, 64 M.J. 176 (C.A.A.F. 2006) (summary disposition).
   20United States v. Atkinson, 74 M.J. 645, 647 (N-M. Ct. Crim. App. 2015) (citing
United States v. Smith, 56 M.J. 290, 293 (C.A.A.F. 2002)).


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                         United States v. Harris, No. 201600207


Such credit shall be computed at the rate of 1 day credit for each day of
confinement served as the result of such noncompliance.”
    The military judge agreed that the government was in technical violation
of R.C.M. 305, but viewed the violation and the remedy through the lens of
the discovery process. He found that the violation began when the
government failed to include Enclosure (1) in its delivery of the IRO’s
memorandum. And he determined that the date of the Article 39(a) hearing—
when the appellant might reasonably have been expected to move to compel
discovery of Enclosure (1)—was the point at which the appellant could no
longer remain silent and continue to harvest mounting day-for-day credit.
    The appellant argues that the military judge erred by imposing “an
additional, unwritten, and unjustified burden on [the appellant]—requiring
the Defense to make repeated requests for a copy of the IRO’s memorandum
and factual findings in order to receive day-for-day credit[.]”21 The appellant
notes that the military judge “even went so far as to characterize this
requirement as an ‘affirmative duty,’ stating, ‘[t]his court believes the defense
had an affirmative duty . . . to bring it to the court’s attention on 29
October.”22 Since nothing in the Rules for Courts-Martial requires an accused
to repeatedly request these matters, the appellant argues that the military
judge erred by holding his silence against him.
    For its part, the government notes that the plain language of R.C.M.
305(k) provides for day-for-day credit for confinement served as a result of a
violation. The government argues that since the appellant cannot
demonstrate that he served any days in pretrial confinement as a result of
the violation, he is not entitled to any days of credit against adjudged
confinement.
   Although we find the government’s plain-language argument compelling,
we are bound by precedent that functionally obviates the language “as a
result of” from the rule. In United States v. McCants, defense counsel
requested a copy of the IRO’s pretrial review memorandum, and the IRO did
not respond.23 At trial, defense counsel requested day-for-day confinement
credit based on, among other errors, the IRO’s failure to provide the
memorandum. The military judge declined, deferring to the convening
authority the responsibility for determining the proper credit. On appeal, the
Court of Military Appeals analysis was brief: the government failed to
provide the memorandum, and the appellant was entitled to one day of credit


   21   Appellant’s Brief of 4 Oct 2016 at 12.
   22   Id. (quoting record at 417) (alterations in the original).
   23   39 M.J. 91, 93 (C.M.A. 1994)


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for each day of noncompliance. Whether the appellant in McCants served any
time confined as a result of the noncompliance, as would seem to be required
by the plain language of the rule, was not mentioned as a consideration.24
   Although McCants did not expressly consider whether the failure to
provide the memorandum resulted in the appellant’s confinement, neither
did it expressly eliminate causality as a requirement for credit. If this were
the extent of the case law on the matter, we might pause before deciding that
the McCants holding represents such a substantial departure from the text of
the rule. But this reading of McCants—and R.C.M. 305(k)—has taken root.
   In United States v. Plowman,25 we held that violations of separate
provisions of R.C.M. 305 did not result in additional days of credit for each
provision that the government violated. On the way to that holding, we
specifically found that “[i]n the context of R.C.M. 305(k), we construe the
phrase ‘as a result of such noncompliance’ to require additional
administrative credit from the date when a required event should have
occurred under R.C.M. 305 until the date the required event does occur.”26
   A year later, in United States v. Moore,27 we interpreted McCants (and
Plowman) to require day-for-day credit from the date when an event required
by R.C.M. 305 should have occurred until the date the event did occur. We
construed “as a result of such noncompliance” not to require prejudice in the
form of confinement that would not have been served but for the error.
Absent higher authority to the contrary, we will continue to follow this
precedent and not require the appellant to show a causal link between the
government’s violation of R.C.M. 305 and his continued pretrial confinement.
   But even though we continue to adhere to the general rule that an
accused is entitled to day-for-day credit when R.C.M. 305 is violated, we do
not find that the military judge abused his discretion in this case. The
government was required to produce the IRO’s memorandum upon the
appellant’s request. The text of R.C.M. 305, however, does not tell military
judges precisely when the government’s production of the IRO’s
memorandum is so dilatory as to violate the rule. By claiming 126 days of
credit encompassing 15 September 2015 to 18 January 2016, the appellant
seems to be of the view that the government began violating R.C.M. 305 from
the moment he made the request. We disagree.



   24   Id. at 94.
   25   53 M.J. 511 (N-M. Ct. Crim. App. 2000).
   26   Id. at 513.
   27   55 M.J. 772, 788 (N-M. Ct. Crim. App. 2001).


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    Here, the appellant’s request occurred after the military judge had
assumed control of the case. The military judge is charged with exercising
reasonable control over the proceedings to promote the purposes of the Rules
for Courts-Martial.28 To that end, the military judge issued a case
management order that determined when the parties were to comply with
their various obligations as the case moved toward trial. He and the parties
also agreed to a deadline by which the parties were to submit motions for
appropriate relief. Consistent with his role in ensuring a fair and orderly
proceeding, the military judge’s order urged counsel to “strive to litigate all
ripe motions at the first motions date[.]”29 Although the order was not
formally signed by the judge until the day of the motions hearing, the record
of trial makes plain that the parties understood that the military judge
expected to litigate motions on 29 October.
    The military judge expressed his reasoning at the time he gave his ruling.
He recognized that neither party approached the issue with clean hands. He
found that the appellant’s counsel should have made the missing enclosure
the subject of a motion at the 29 October Article 39(a) session. The military
judge declined to call defense counsel’s decision to accrue credit rather than
compel compliance “gamesmanship,” settling instead on “smart litigating.”30
But ultimately the military judge sensed that the appellant was using R.C.M.
305 as a sword rather than a shield, and that to permit the defense to prefer
the remedy to actual compliance would be to grant an unwarranted
“windfall.”31 The military judge granted 23 days of credit, representing day-
for-day credit for the violation starting on the day the government delivered
the incomplete IRO memorandum (7 October) and lasting through the date
the appellant should have moved for production (29 October).
    We find that this approach was not an abuse of the military judge’s
discretion. We have previously held that “[g]enerally, the doctrine of laches
bars a claim if there is unreasonable delay and the government is
prejudiced.”32 Without using the term, the military judge applied the doctrine
of laches to, in the words of R.C.M. 102, “secure simplicity in procedure, [and]
fairness in administration” of the court-martial. We disagree with the
appellant’s contention that the military judge’s ruling created a requirement
that the accused make “repeated requests” for matters under R.C.M. 305. The


   28   R.C.M. 801(a)(3).
   29   AE I at 2, n.v.
   30   Record at 420.
   31   Id.
   32   Johnson v. United States, 49 M.J. 569, 573-74 (N-M. Ct. Crim. App. 1998).


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military judge was well-within his authority to expect the parties to litigate
this motion on 29 October. We find that the military judge’s ruling was an
appropriate exercise of his responsibility to reasonably control the
proceedings and to promote the purposes of the Rules for Courts-Martial.33
Rather than comply with the agreed upon portions of the draft case
management order and the military judge’s stated expectations, defense
counsel let the matter go unnoticed by the court until the days of potential
credit had been maximized. While this approach may have represented
“smart litigating,” we find that the military judge did not abuse his discretion
by declining to reward the appellant with the windfall.
                                   III. CONCLUSION
   The findings and sentence are affirmed.


   Chief Judge GLASER-ALLEN and Senior Judge MARKS concur.
                                           For the Court




                                           R. H. TROIDL
                                           Clerk of Court




   33   See R.C.M. 801.


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