

   
   
   
   U.S. v. Scalarone



UNITED STATES, Appellant
v.
Gary L. SCALARONE, Lance Corporal
U.S. Marine Corps, Appellee
 
No. 00-5001
Crim. App. No. 98-0227
 
United States Court of Appeals for the Armed
Forces
Argued March 1, 2000
Decided September 11, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which EFFRON, J., and COX, S.J., joined. COX, S.J., filed a concurring
opinion. GIERKE, J., filed an opinion concurring in the result. CRAWFORD,
C.J., filed a dissenting opinion.
Counsel
For Appellant: Lieutenant William
C. Minick, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief).
For The Accused: Lieutenant Commander
Michael J. Wentworth, JAGC, USN (argued).
Military Judge: J. F. Blanche
 
 


This opinion is subject
to editorial correction before publication.


Judge SULLIVAN delivered the opinion of the Court.
On July 17, 1997, the accused was tried by
a general court-martial composed of a military judge sitting alone at Marine
Corps Air Station, Yuma, Arizona. Pursuant to his pleas, he was found guilty
of conspiring to possess and distribute marijuana and 5 specifications
of introduction, possession, and distribution of various controlled substances,
in violation of Articles 81 and 112a, Uniform Code of Military Justice,
10 USC §§ 881 and 912(a). He was sentenced to a dishonorable
discharge, confinement for 25 years, a fine of $5,000, total forfeitures,
and reduction to E-1. A fine enforcement provision provided for an additional
year of confinement if the accused failed to pay the adjudged fine.
On December 23, 1997, the convening authority
approved the sentence as adjudged. Pursuant to a pretrial agreement, however,
he suspended confinement in excess of 8 years for a period of 12 months
from the date on which the accused is released from confinement. On October
13, 1999, the Court of Criminal Appeals set aside specification 1 of Charge
II (possession of psilocybin mushrooms, a controlled substance) as a lesser-included
offense of specification 3 of Charge II (distribution of same substance)
and set aside specification 4 of Charge II (possession of marijuana) as
a lesser-included offense of specification 5 of Charge II (distribution
of marijuana) but otherwise affirmed the findings. It reassessed the sentence,
approving a dishonorable discharge, confinement for 21 years, total forfeitures,
and reduction to E-1. The Court of Criminal Appeals also awarded the accused
an additional 87 days of credit towards his sentence of confinement because
it determined that he was subjected to illegal pretrial punishment. United
States v. Scalarone, 52 MJ 539, 545-46 (N.M.Ct.Crim.App. 1999).
On November 12, 1999, the Judge Advocate General
of the Navy certified the following issue for review:



WHETHER UNITED STATES V. HUFFMAN,
40 MJ 225 (CMA 1994), WHICH HELD THAT AN ACCUSED'S FAILURE TO RAISE THE
ISSUE OF ILLEGAL PRETRIAL CONFINEMENT AT TRIAL DOES NOT PRECLUDE HIM FROM
RAISING THE ISSUE ON APPEAL, SHOULD BE OVERRULED.



We hold that the Court of Criminal Appeals properly
followed the decision of this Court in United States v. Huffman,
supra.
SeeUnited
States v. Allbery, 44 MJ 226, 227-28 (1996); United States v. Jones,
23 MJ 301 (CMA 1987). Furthermore, we decline the invitation of the Judge
Advocate General of the Navy to overrule Huffman.
SeeUnited States
v. Tualla, 52 MJ 228, 231 (2000); cf.
United States v. Carter,
25 MJ 471, 473 (CMA 1988).
The Court of Criminal Appeals detailed the
facts of this case with respect to the accuseds post-trial claim that
he was unlawfully punished while in pretrial confinement:



The appellant was placed in pretrial confinement
in Yuma, Arizona, on 21 April 1997, for violations of Articles 81 and 112a,
UCMJ. Affidavit of GySgt Waliszewski of 8 Apr. 1999 at 1. He remained in
pretrial confinement until his trial, which occurred on 17 July 1997. His
initial custody classification was "Medium, In Custody." Id. This
meant that he could not work outside of the facility. He was also required
to have immediate supervision at all times, to wear restraints outside
the security perimeter, and to have two escorts outside the perimeter.
He was assigned to "Special Quarters," rather than the "dorm" cells, because
of the seriousness of his charges and the possibility of escape. Id.
He remained in "Special Quarters" for 87 days. Record at 43. While in pretrial
confinement, as a matter of policy,
the appellant was not authorized phone calls or visits. Affidavit of Appellant
of 1 Dec. 1998; Brig Officer letter of 23 Apr. 1997. The logs kept in the
Brig, however, indicate that the appellant may have made or received three
phone calls and had a total of nine visits. The trial defense counsel made
five of these visits, and another was for "legal matters." One was a visit
by a representative of the appellant's command. The visitor log does not
indicate the purpose of the other two visits. Government Motion to Attach
of 14 May 1999, Visitation Log. The appellant was also told that he was
in medium custody because he was considered a flight risk based on the
length of the sentence he could receive. Affidavit of Appellant of 1 Dec.
1998.
While in "Special Quarters" the appellant was
segregated from other prisoners and housed in a smaller cell for over 23
hours a day, Monday through Friday. He was allowed out of his cell for
15 minutes a day for recreation. When taken out of his cell, he was placed
in leg and hand restraints. Based upon the evidence presented by the appellant,
he has met his relatively low burden of proof.
In response, the Government produced an affidavit
from Gunnery Sergeant Waliszewski, the detention facilities supervisor
of the Yuma Brig. Additionally, the Government produced the Brig's Special
Handling Instructions for the appellant, a phone log, and a visitation
log. We find that those documents generally corroborate the allegations
made by the appellant. Of particular concern are the restrictions on phone
calls and visitation placed upon the appellant by the Special Handling
Instructions, and the emphasis placed on the appellant being an escape
risk as a basis for his classification. See United States v.
Anderson, 49 MJ 575 (N.M.Ct.Crim.App. 1998).



Id. at 544 (footnote omitted).
The appellate court below awarded 87 days credit
towards appellant's sentence. It stated:



Article 13, UCMJ, prohibits the intentional
imposition of pretrial punishment, and also the imposition of restrictions
on liberty which exceed that needed to ensure an accused's presence for
trial. United States v. McCarthy, 47 MJ 162 (1997). We find no evidence
of record of intent to punish the appellant by placing him in "Special
Quarters." We are always hesitant to second-guess administrative classifications.
See
United States v. Jenkins, 50 MJ 577 (N.M.Ct.Crim.App. 1999). In
this case, however, we find that the combination of the appellant's Special
Handling Instructions and the focus on the possibility of the appellant's
escape due to the seriousness of the charges, as the reasons to assign
him to "Special Quarters," resulted in the imposition of conditions more
rigorous than necessary to ensure his presence for trial. See Anderson,
49 MJ at 576. We will grant relief in our decretal paragraph.



Id.
The Court of Criminal Appeals, however, acted
quite reluctantly. It stated that it was compelled by our decision in United
States v. Huffman, supra, to entertain the accuseds request
for sentence credit made for the first time on appeal. It said:



We note the issue of illegal pretrial confinement
was not raised at trial and is, thus, being raised for the first time on
appeal. We find great merit in the argument that the appellant's failure
to raise this issue before the military judge constituted waiver. United
States v. Huffman, 40 MJ 225, 228 (CMA 1994) (Crawford, J., dissenting
in part and concurring in the result). Nevertheless, the 3-2 majority decision
in that case binds us. Thus, in spite of appellant's failure to address
the issue of illegal pretrial punishment while he was allegedly experiencing
it, or at the very least at the time of trial, appellant may now raise
this issue for our consideration and resolution. Huffman, 40 MJ
at 227. Since there was no evidentiary hearing, we must rely on the affidavits
presented by both parties. Although the failure to raise this issue at
trial does not bar this court from reviewing the conditions of his pretrial
confinement, it is strong evidence that appellant has not been subjected
to pretrial punishment. Id.; United States v. Palmiter, 20
MJ 90, 97 (CMA 1985).



52 MJ at 543. The Judge Advocate General asks
whether the decision of this Court in United States v. Huffman should
be overruled and, by implication, that the previously awarded credit be
set aside.
___ ___ ___
We initially note that Article 67(a)(2), UCMJ,
10 USC
§ 867(a)(2), states that "[t]he Court
of Appeals for the Armed Forces shall review the record in . . . all cases
reviewed by a Court of Criminal Appeals which the Judge Advocate General
orders sent to the Court of Appeals for the Armed Forces for review. .
. ." See generally United States v. Armbruster,
11 USCMA 596, 29 CMR 412 (1960). In this case, a question is raised
concerning the propriety of the lower appellate courts holding
that it must follow our Courts decision in United States v.
Huffman, supra. Neither the Supreme Court nor this Court
has overruled our decision, nor has there been any other subsequent change
in the law affecting it. 1
Accordingly, we hold that the Court of Criminal Appeals did not err in
following our decision. See United States v. Allbery, supra;
United
States v. Jones, supra.
Moreover, the Government has not persuaded
us that United States v. Huffman should now be overruled. See
Robert M. Mummey, Judicial Limitations Upon a Statutory Right: The Power
of the Judge Advocate General to Certify under Article 67(b)(2), 12
Mil. L. Rev. 193, 217 (1961) (any specified question of law raised in case).
Judge Effron, writing for a majority of this Court in United States
v. Tualla, 52 MJ at 231, explained the heightened requirements for
overruling our precedent:



When considering whether to overrule a precedent,
we are guided by the doctrine of stare decisis. Under this
fundamental principle, adherence to precedent "is the preferred course
because it promotes the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial process." Payne
v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
Stare decisis is a principle
of decision making, not a rule, and need not be applied when the precedent
at issue is "unworkable or . . . badly reasoned." Id. As a general
matter, however, "[a]dhering to precedent 'is usually the wise policy,
because in most matters it is more important that the applicable rule of
law be settled than it be settled right.'" Id. (quoting Burnet
v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76
L.Ed. 815 (1932) (Brandeis, J., dissenting)).



We reject the Governments suggestions that United
States v. Huffman, supra, is "unworkable" (see United
States v. Ginn, 47 MJ 236 (1998) (establishing workable procedure for
addressing certain legal claims raised for first time on appeal)) or "badly
reasoned." See also New York v. Hill, ___ U.S. ___,
120 S.Ct. 659, 664 (2000) ("For certain fundamental rights, the defendant
[not his counsel] must personally make an informed waiver."). On the contrary,
it is entirely consistent with the longstanding precedent of this Court.
United
States v. Johnson, 19 USCMA 49, 41 CMR 49 (1969); see generally
Homer E. Moyer, Jr., Justice and the Military §§ 2-355
to 2-360 at 411-14 (1972). Accordingly, we decline the invitation to overrule
our prior decision. Cf. United States v. Carter, 25 MJ at
477. The certified issue is answered in the negative.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
1 Contrary to the suggestion
of the dissent, the Manual for Courts-Martial did not and does not now
provide that the failure to request (during a sentencing proceeding of
a court-martial) sentence credit for unlawful pretrial punishment or illegal
pretrial confinement forfeits such a claim in the absence of plain error
or waives such a claim forever. See RCM 305(j)(2) and (k), 801(g),
905(e), and 907(b)(2).


COX, Senior Judge (concurring):
I concur in Judge Sullivan's opinion.
I am an admitted "paternalist." A paternalist
treats others as a father would his child. As such, I am unable to ignore
the dissent of our Chief Judge.
Chief Judge Crawford's dissent, which comes
as no surprise given her dissent in Huffman, appears to be based
upon the notion that the accused is bound by the conduct of his attorney,
who did not pursue the question of pretrial punishment at trial. New
York v. Hill, 120 S.Ct. 659, 666 (2000). "[T]he defendant is 'deemed
bound by the acts of his lawyer-agent and is considered to have "notice
of all facts, notice of which can be charged upon the attorney."'" Id.
at 664. I certainly take no quarrel with this proposition of law. Indeed,
a trial could hardly be conducted without such a doctrine.
Nevertheless, it seems only logical to me that
a defendant cannot be bound by facts NOT KNOWN TO EITHER HIM OR HIS
LAWYER. Thus, in the context of this case, it is of no moment whether
Chief Judge Crawford is philosophically right or wrong regarding the underlying
question in Huffman, that is, does a servicemember forfeit rights
conferred upon him by the Uniform Code of Military Justice by not raising
them at trial? No one has ever suggested that an accused cannot waive many
of his rights before, during, or after a trial.
No one disputes her premise that it is far
better to litigate these issues at trial rather than raise the issues for
the first time on appeal. Indeed, military judges should routinely inquire
about matters such as pretrial confinement, pretrial punishment, or the
like prior to adjourning a court-martial. I cannot think of a single sentence
that I imposed as a trial judge where I did not inquire of the defendant
or his attorney whether the defendant was entitled to any administrative
credits as a result of pretrial matters.
New York v. Hill, however, is not a
forfeiture case. It is a waiver case. Every dictionary that I have consulted,
including the legendary Blacks Law Dictionary, has defined waiver as "intentionally
relinquishing or abandoning a known right." Merriam Webster's Collegiate
Dictionary 1328 (10th ed. 1998). Even if an attorney is authorized
under the New York v. Hill decision to waive an appellant's right
to credit for pretrial confinement or pretrial punishment, the attorney
must know what it is that he or she is waiving. There is no evidence of
that in this case. Indeed, if the attorney did know that the accused had
suffered pretrial punishment and "waived" the issue, then that is incompetence
of counsel per se.
The bottom line is that even if one agrees
with her apparently heart-felt philosophy that a servicemember "waives"
important statutory rights because his or her military attorney did not
raise them at trial, her reliance on New York v. Hill is inappropriate
here. There is simply no evidence before this Court that either the attorney
or the accused knew or should have known that the pretrial confinement
imposed upon the accused violated Article 13, UCMJ, 10 USC § 813.
The conditions imposed upon the accused were standard practice in the pretrial
confinement facility, and it was not until the Navy-Marine Corps Court
of Criminal Appeals concluded that the practice violated Article 13 that
the issue become known.
Lastly, let me make it clear, I may be a "paternalist,"
but after over 36 years of involvement with military justice and 22 years
on the bench as a trial and appellate judge, I have witnessed for myself
the experience level of the young military attorneys who represent our
nation's men and women. Notwithstanding the fact that, in the main, these
young attorneys are zealous, conscientious, and try hard to fully represent
their clients, they do not always get it right. Someone, somewhere, has
to step in and insure that each servicemember is afforded the protections
that Congress intended they have. It saddens me that the Chief Judge of
this Court, the Judge Advocate General of the Navy, and many trial and
appellate judges are quick to find "waiver" or some other legal theory
to deny a servicemember relief if it is due.


GIERKE, Judge (concurring in the result):
I disagree with this Courts decision in United
States v. Huffman, 40 MJ 225 (CMA 1994), for the reasons set out in
Chief Judge Crawfords separate opinion in that case, which I joined. Therefore,
I would answer the certified question in the affirmative.
Nevertheless, the court below was obligated
to follow this Courts decision in Huffman, and appellant was entitled
to the benefit of it. United States v. Allbery, 44 MJ 226, 228 (1996).
Accordingly, I join the majority in affirming the decision of the court
below.


CRAWFORD, Chief Judge (dissenting):
The majority continues to swim in a sea of
paternalism. It overlooks the fact that we are bound by the President's
rules, unless they are unconstitutional. United States v. Scheffer,
523 U.S. 303, 118 S. Ct. 1261 (1998). At oral argument, the Government
stated the accused deserved no credit and the decision below should be
reversed. I agree.
The Manual expressly provides that the failure
to make a motion for appropriate relief before the court-martial is adjourned
constitutes a waiver absent good cause shown for not making the motion.
RCM 905(e), Manual for Courts-Martial, United States (1998 ed.); see
also RCM 907(b)(2)(D)(iv). As we said in United States v. Huffman,
40 MJ 225, 229 (CMA 1994):



The purpose of these so-called "raise-or-
waive" Manual Rules are to eliminate the
expense to the parties and the public of
rehearing an issue that could have been
dealt with by a timely objection or motion
at trial.



Recently, the Supreme Court unanimously rejected
the requirement for an affirmative waiver under the Interstate Agreement
on Detainers. New York v. Hill, 120 S.Ct. 659, 666 (2000). The Court
noted:

For certain fundamental rights, the defendant
must personally make an informed waiver.... (right to counsel) ... (right
to plead not guilty). For other rights, however, waiver may be effected
by action of counsel. "Although there are basic rights that the attorney
cannot waive without the fully informed and publicly acknowledged consent
of the client, the lawyer hasand must havefull authority to manage the
conduct of the trial." ... As to many decisions pertaining to the conduct
of the trial, the defendant is "deemed bound by the acts of his lawyer-agent
and is considered to have notice of all facts, notice of which can be
charged upon the attorney." ... Thus, decisions by counsel are generally
given effect as to what arguments to pursue, ... and what agreements to
conclude regarding the admission of evidence.... Absent a demonstration
of ineffectiveness, counsels word on such matters is the last.

Id. at 664 (citations omitted).
Except for Huffman, it would seem that
the failure to make the motion in this case is the "last word" absent a
claim of ineffectiveness. Id.
Huffman is unworkable, and the impact
on the system can now be seen. Since the Huffman decision, we have
had numerous cases where the issue has not been raised before the court-martial
is adjourned. United States v. Yunk,
53 MJ 145 (2000); United States v. Smith,
53 MJ 168 (2000); United States v. Starr, No. 99-0999, ___ MJ ___
(2000); United States v. Avila, 53 MJ 99 (2000); United States
v. Southwick, No. 99-0832, ___ MJ ___ (2000); cf. United
States v. Fricke, 53 MJ 149 (2000). The astute lawyer realizes that
his or her client may be entitled to more relief after appellate review
because witnesses move and facts are forgotten. However, this approach
does not serve their clients nor the military justice system.
The military justice system provides for an
extensive review of pretrial restraint. Foremost, the military accused
is entitled "to retain civilian counsel at no expense to the United States,
and the right to request assignment of military counsel" "within 72 hours
of" confinement. RCM 305(e) and (f). Trial defense counsel are expected
to be active advocates for their clients in pretrial confinement determinations
and throughout the duration of pretrial confinement. Additionally, there
are a number of safeguards in place: the 48-hour probable cause review,
United
States v. Rexroat, 38 MJ 292 (CMA 1993); the 72-hour commander's review,
RCM 305(h)(2); the 7-day neutral and detached officers review, RCM 305(i)(1)&(2);
and the military judges review, RCM 305(j).
I can support neither circumvention of these
safeguards nor the avoidance of the waiver rules. Therefore, I dissent.


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