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

                            No. 201700214
                        _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.

                     KANIEL L. MACDONALD
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
    Convening Authority: Commanding General , Marine Corps
  Installations East – Marine Corps Base, Camp Lejeune, North
                              Carolina.
 Staff Judge Advocate’s Recommendation: Captain Jenna E. Reed,
                               USMC.
     For Appellant: Commander R.D. Evans, Jr., JAGC, USN.
For Appellee: Captain Luke Huisenga, USMC; Lieutenant Megan P.
                       Marinos, JAGC, USN.
                      _________________________

                         Decided 19 July 2018
                        _________________________

  Before W OODARD , M ARKS , and J ONES , 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.
                      _________________________

   JONES, Senior Judge:
   A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of willful disobedience of a superior
commissioned officer, eight specifications of assault consummated by a
battery, one specification of adultery, one specification of communicating a
                       United States v. MacDonald, No. 201700214


threat, and one specification of negligent endangerment of a child, in
violation of Articles 90, 128, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 890, 928, and 934. The military judge sentenced the
appellant to 30 months’ confinement, reduction to pay grade E-1, forfeiture of
all pay and allowances, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged but, pursuant to a pretrial
agreement, suspended all confinement in excess of 24 months. Except for the
dishonorable discharge, the CA ordered the sentence executed.
    The appellant asserts two assignments of error (AOEs): (1) he suffered
pretrial punishment in violation of Article 13, UCMJ, entitling him to
additional day-for-day credit; and (2) he was denied a fair sentencing hearing
by the trial counsel’s inflammatory sentencing argument. We disagree and,
finding no error materially prejudicial to the substantial rights of the
appellant, affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
    In March 2013, the appellant began working as a correctional specialist at
the Marine Corps Installation East Regional Brig (the Brig)1 at Camp
Lejeune, North Carolina. Three and one-half years later he became a pretrial
detainee there. Beginning in September 2016, he spent 226 days of pretrial
confinement housed in administrative segregation, also known as special
quarters. Upon arriving at the Brig, the appellant was first placed in special
quarters because his charges included rape, sexual assault, aggravated
assault, and the attempted killing of an unborn child. According to the Naval
Corrections Manual, Bureau of Naval Personnel Instruction 1640.22 (29 Mar
2011), these charges qualified him as potentially violent and dangerous. But
even after the appellant was no longer deemed potentially violent and
dangerous, he remained in special quarters because of his former position as
a correctional specialist at the Brig. The Brig Officer testified that former
staff members of Navy-Marine Corps brigs are always placed in
administrative segregation to prevent them from being harassed or harmed
by other prisoners, and because their knowledge of brig procedures may pose
a threat to the security of the facility, the guards, or other inmates.
    With regard to the second AOE, during the government’s sentencing
argument, the trial counsel argued that: (1) the appellant “preyed on a
child;”2 (2) the appellant “turned his back” on the “honorable traditions of the
United States Marine Corps” and had “disgraced the uniform that we


   1 This particular facility where the appellant was a detainee is referred to as the
“Brig,” while military confinement facilities generally are referred to as “brigs.”
   2   Record at 80.


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                    United States v. MacDonald, No. 201700214


[wear;]”3 and (3) “the Marine Corps does not and will not tolerate within its
ranks”4 servicemembers like the appellant. The defense counsel did not object
to any of the statements.
                                 II. DISCUSSION
A. Article 13, UCMJ, unlawful pretrial punishment
   The appellant renews on appeal his trial motion for relief for illegal
pretrial punishment. Specifically, he contends that the 226 days of pretrial
confinement he spent in administrative segregation from the general
population constituted pretrial punishment in violation of Article 13, UCMJ.
Accordingly, he requests that we grant him an additional 226 days of credit
beyond the day-for-day credit he received pursuant to United States v. Allen,
17 M.J. 126 (C.M.A. 1984). We decline to grant such relief.
    “The burden is on [the] appellant to establish entitlement to additional
sentence credit because of a violation of Article 13[, UCMJ].” United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing R.C.M. 905(c)(2)). Whether an
appellant is entitled to relief for a violation of Article 13, UCMJ, is a mixed
question of law and fact. Id. (citing United States v. Smith, 53 M.J. 168, 170
(2000); United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997))
(additional citation omitted). “We will not overturn a military judge's findings
of fact, including a finding of no intent to punish, unless they are clearly
erroneous. . . . We will review de novo the ultimate question whether [this]
appellant is entitled to credit for a violation of Article 13[, UCMJ].” Id. (citing
Smith, 53 M.J. at 170).
    Article 13, UCMJ, states that “[n]o person, while being held for trial, may
be subjected to punishment or penalty other than arrest or confinement upon
the charges pending against him, nor shall the arrest or confinement imposed
upon him be any more rigorous than the circumstances required to insure his
presence[.]” In other words, Article 13, UCMJ, prohibits two things: (1)
pretrial punishment; and (2) conditions of pretrial confinement that are more
rigorous than necessary. “The burden is on [the] appellant to establish
entitlement to additional sentence credit because of a violation of Article 13[,
UCMJ].” United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing
RULE FOR COURTS-MARTIAL 905(c)(2), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2000 ed.)).




   3   Id. at 78.
   4   Id.


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                      United States v. MacDonald, No. 201700214


   1. No pretrial punishment
    When assessing whether the appellant was punished in pretrial
confinement, we initially look to whether the government intended to punish
him, ‘“which is determined by examining the purposes served by the
restriction or condition, and whether such purposes are reasonably related to
a legitimate governmental objective.”’ Howell v. United States, 75 M.J. 386,
393 (C.A.A.F. 2016) (quoting United States v. Palmiter, 20 M.J. 90, 95
(C.M.A. 1985)). If we find no intent to punish, we then examine whether the
particular conditions of the pretrial confinement, which may appear on their
face to be punishment, are tied to legitimate nonpunitive governmental
objectives. Id.
   At trial, the appellant argued that his administrative segregation
stemmed from “the [B]rig personnel’s frustration with [him] from when he
was a Correctional Specialist.” During his tour there, he was “non-
recommended for promotion seven times and received three official
counselings[.]”5 Unconvinced, the military judge concluded that the appellant
“ha[d] not presented any evidence demonstrating intent by [B]rig officials to
punish [him].”6
    Finding no intent to punish, the military judge considered whether the
appellant’s conditions of confinement were an incident of a legitimate
nonpunitive governmental objective. Id. Where “a particular condition or
restriction of pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount to ‘punishment.’”
Bell v. Wolfish, 441 U.S. 520, 539 (1979). Legitimate governmental objectives
include protection of the welfare and safety of the confinement facility and
the appellant. See United States v. Mack, 65 M.J. 108, 109 (C.A.A.F. 2007).
    While assessing whether a brig policy or decision is in furtherance of a
legitimate governmental objective, courts must remain “reluctant to second-
guess the security determinations of confinement officials.” United States v.
King, 61 M.J. 225, 228 (C.A.A.F. 2005) (citing McCarthy, 47 M.J. at 167-68).
To this end, the Supreme Court has cautioned that courts should accord brig
officials “wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Bell, 441 U.S. at 547
(citations omitted); see also Pell v. Procunier, 417 U.S. 817, 827 (1974) (“Such
considerations are peculiarly within the province and professional expertise
of correction officials, and, in the absence of substantial evidence in the


   5   Appellate Exhibit (AE) V at 3.
   6   AE XII at 4.


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                       United States v. MacDonald, No. 201700214


record to indicate that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in
such matters.”). We, too, have “recognize[d] that such personnel are generally
much better equipped than are we to make such tough calls.” United States v.
Anderson, 49 M.J. 575, 577 (N-M. Ct. Crim. App. 1998).
    Here, the military judge’s specific finding that the appellant’s
administrative segregation “was not intended as punishment”7 is amply
supported by the record.8 The appellant was placed in special quarters based
on an unwritten Brig policy requiring that all former Brig corrections
personnel in pretrial confinement be housed in special quarters. The Brig
Officer testified that this has been the policy of all Navy-Marine Corps brigs
at which he has served over his 20-year career.9 Still, the appellant contends
this policy is arbitrary and capricious, therefore constituting illegal
punishment both in general10 and as applied to his case. We, like the military
judge, disagree.
      The appellant was confined at the very brig he had worked in for more
than three years prior to his pretrial confinement. He was under the watch of
security personnel who had recently considered him a colleague and vice
versa. Unsurprisingly, the military judge found that as “a former guard, the
[appellant] had knowledge of brig procedures, security protocol, and staff
members.”11 The military judge concluded that: “the Brig had a legitimate
governmental interest in ensuring that the [appellant] did not share this
insider information with his fellow detainees lest it pose a threat to the
security of the facility, the guards, or his fellow inmates.”12 These findings are
not clearly erroneous and are fully supported by the record. The deference
accorded brig officials in deciding the classification of detainees applies to
“prophylactic or preventative measures intended to reduce the incidence of
. . . breaches of prison discipline.” United States v. Albers, 475 U.S. 312, 322
(1986). The Brig policy of segregating the appellant as a former staff member
is an appropriate prophylactic measure to “ensure the safety of inmates and



   7   Id. at 2.
   8  During sentencing, the military judge questioned the Brig Officer whether
“there was . . . any intent to place [the appellant] in segregation as a form of
punishment[,]” to which the witness responded, “No, sir.” Record at 100.
   9   AE XII at 2.
   10 “Any detainee could end up in special quarters for the ostensible ‘purposes of
control and preserving order.”’ Appellant’s Brief of 22 Sep 2017 at 8.
   11   AE XII at 4.
   12   Id.


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                       United States v. MacDonald, No. 201700214


corrections personnel and to prevent escape or unauthorized entry.” Bell, 441
U.S. at 547 (1979).
    Moreover, within eight days of switching from watchful guard to patrolled
detainee, the appellant “was overheard talking to a fellow detainee about a
brig staff member—one of the very concerns underlying the brig policy in
question.”13 At his initial 30-day status review, Brig officials decided to
continue his administrative segregation “due to his status as a former brig
guard” and “based, in part, on his conduct while in confinement.”14
    Isolating correctional specialists from other detainees while in pretrial
confinement is not novel to the military. As the military judge noted in his
ruling, such a policy is “similar to the isolation often accorded civilian police
officers who are placed in jails or prisons.”15 This longstanding practice in
civilian correctional facilities has withstood legal scrutiny. See, e.g., Anderson
v. County of Kern, 45 F.3d 1310, 1315 (9th Cir. 1995) (noting county jail’s
policy of placing former police and correctional officers into administrative
segregation); United States v. Zuni, 506 F.Supp.2d 663, 685 (D.N.M. 2007)
(finding it “very likely” that defendant would have to serve his sentence in
solitary confinement because of his background as former law enforcement
officer), aff’d, 273 Fed. Appx. 733 (10th Cir. 2008); Valentin v. Murphy, 95
F.Supp.2d 99, 102 (D. Conn. 2000) (“[h]aving determined initially that [a
detainee] would be at risk in the general state prison population, based on his
status as an ex-law enforcement officer, the defendants were not obliged to
revisit that decision in the absence of information that the risk had
dissipated”).
    In sum, segregating the appellant in special quarters served three
preeminent safety concerns, any one of which would justify the policy:
upholding security within the facility, protecting the guards from the dangers
of leaked insider knowledge, and shielding the appellant from potential
maltreatment by fellow detainees. Thus, the unwritten policy of placing
former correctional specialists in special quarters supported legitimate
governmental objectives and did not inflict unlawful pretrial punishment.
   The military judge’s findings of fact are supported by the record and are
not clearly erroneous. Nor are his conclusions of law incorrect. Therefore,


   13   AE XII at 4.
   14 Id. Such a review process was maintained throughout the appellant’s pretrial
confinement. The intention was to eventually transfer him from the facility to
another brig so that guards and fellow detainees would not recognize the appellant as
a correctional specialist. Record at 94.
   15   AE XII at 4.


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                  United States v. MacDonald, No. 201700214


“we, like the judge, decline to engage in second-guessing the decision of the
brig authorities.” McCarthy, 47 M.J. at 167. We turn next to focus with more
particularity on the circumstances of the appellant’s pretrial confinement.
   2. No unduly rigorous circumstances of pretrial confinement
    Article 13, UCMJ, also prohibits the imposition of unduly rigorous
circumstances during pretrial confinement. “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.”
United States v. Harris, 66 M.J. 166, 168 (C.A.A.F. 2008) (citations omitted).
   Here, the military judge found that the appellant failed to show any
unduly rigorous circumstances that would constitute punishment.
        The conditions of the accused’s pretrial confinement were
        identical in almost every respect to his fellow pretrial
        detainees, except for the obvious segregation. He was housed in
        an identical cell, ate the same food, and had access to the same
        visitation and recreation. The accused also received periodic
        mental health evaluations to ensure he remained mentally fit
        for assignment to special quarters.16
    We agree with the military judge. The appellant did not endure any
unduly rigorous circumstances; he merely experienced life as a detainee in
special quarters. The appellant offers no authority that an accused
legitimately placed in special quarters automatically suffers from unduly
rigorous circumstances. In fact, this is not the law. The Court of Appeals for
the Armed Forces has denied Article 13, UCMJ, relief for conditions worse
than those experienced by the appellant.17 Indeed, the appellant suffered
nothing more than the inherent conditions of his legitimate detention—albeit
in solitary confinement. The Supreme Court has stated that this
inconvenience of being detained is not tantamount to punishment.
            Whether it be called a jail, a prison, or a custodial center,
        the purpose of the facility is to detain. . . . And the fact that


   16  Id. (footnote omitted). The military judge did note that the appellant received
less recreation and exercise time during the weekends than those who were not in
special quarters. However, he did “not find that distinction excessive or overly
burdensome to the accused.” Id. at n.7.
   17  See Harris, 66 M.J. 168-69 (rejecting the appellant’s claim that “the conditions
of his pretrial confinement in maximum custody were unduly rigorous in that he was
forced to remain in his cell twenty-one hours each day, wear shackles during his two-
hour television break, eat his meals in his cell, endure roaches and mice in his cell,
and endure dire heat due to a lack of air conditioning”).


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                     United States v. MacDonald, No. 201700214


         such detention interferes with the detainee’s understandable
         desire to live as comfortably as possible and with as little
         restraint as possible during confinement does not convert the
         conditions or restrictions of detention into “punishment.”
Bell, 441 U.S. at 537.
    Additionally, as the military judge noted, the appellant did not raise
pretrial punishment as an issue at arraignment18 nor at any other time prior
to the week of his scheduled providence inquiry.19 The appellant first
complained of the conditions of his pretrial confinement in a motion filed “10
days after the judicially ordered deadline for the filing of pretrial motions.”20
Strikingly, this juncture marked 224 days spent by the appellant in pretrial
confinement without “seek[ing] redress from his commanding officer, the
military magistrate, the convening authority, or [the trial] Court.”21 This was
not for lack of knowledge—to the contrary, the appellant “had a right to
appear before the Board in order to dispute his assignment” of administrative
segregation, yet declined each time, totaling 10 forgone opportunities.22
Although he did preserve this issue for appeal, the appellant’s failure to raise
a claim of pretrial punishment earlier is some evidence that he was not
suffering unduly rigorous circumstances. See King, 61 M.J. at 228.
   The military judge’s findings of fact are supported by the record and are
not clearly erroneous. Nor are his conclusions of law incorrect. We conclude
that the appellant’s placement in special quarters was not punishment, and
he did not suffer unduly rigorous conditions while in pretrial confinement.
B. Improper sentencing argument
    The appellant alleges that he was denied a fair sentencing hearing
because the government made improper argument. The appellant raises this
issue for the first time on appeal, having not objected at trial to any portion of
the government’s sentencing argument.
    We review allegations of improper argument de novo. United States v.
Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017). “If proper objection is made, we review
for prejudicial error. If no objection is made, we hold the appellant has
forfeited his right to appeal and review for plain error. The burden of proof

   18   The appellant was arraigned on 15 March 2017. AE XII at 3.
   19  The military judge accepted the appellant’s guilty pleas and convicted him of
his offenses on 28 April 2017. Id.
   20   Id. (footnote omitted).
   21   Id. at 5.
   22   Id. at 3.


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                     United States v. MacDonald, No. 201700214


under plain error review is on the appellant.” United States v. Andrews, 77
M.J. 393, 2018 CAAF LEXIS 294, at *6 (C.A.A.F. May 22, 2018) (internal
citations omitted). “Plain error occurs when (1) there is error, (2) the error is
plain or obvious, and (3) the error results in material prejudice to a
substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179
(C.A.A.F. 2005) (citation omitted). We do not find any of the trial counsel’s
statements to be plain error.
    First, the trial counsel’s use of the word “prey” encompassed the
appellant’s violence and neglect to a number of people close to him. The trial
counsel argued that the appellant “preyed on a child, preyed on two women,
and these were people who should have been able to rely on him more than
anyone else for care and protection.”23 He further argued, “[f]ar from
protecting them, the accused preyed repeatedly on all of these intimate
partners and close immediate family members, by either beating them or
neglecting them according to his own selfish whims.”24 Considering the
appellant’s wide swath of criminal activity, which included violence against
two women, his threat to kill his unborn child, and his culpably negligent
failure to feed an infant in his care, the trial counsel’s characterization—
while not ideal—was not beyond the pale.
    Second, the trial counsel’s argument that the appellant had “turned his
back” on the “honorable traditions of the United States Marine Corps” and
“disgraced the uniform that we wear” was not error.25 Contrary to the
appellant’s argument, the trial counsel’s statements did not impermissibly
personalize the sentencing argument by asking the military judge to put
himself in the place of a victim or a relative. See United States v. Marsh, 70
M.J. 101, 106 (C.A.A.F. 2011). The trial counsel’s statements had a direct
nexus to two of his offenses under Article 134, UCMJ—wrongfully
communicating a threat to kill an unborn child26 and child endangerment—
which require proof of detriment to good order and discipline or service
discrediting conduct.27 During the providence inquiry, the appellant admitted
that his conduct was service discrediting because “[i]f the public were to find
out that a Marine was threatening a pregnant woman[]”28 and “[i]f the public



   23   Record at 80.
   24   Id. at 78.
   25   Id.
   26   Charge Sheet preferred on 23 Nov 2016.
   27   Charge Sheet preferred on 27 Jan 2017.
   28   Record at 34.


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                     United States v. MacDonald, No. 201700214


knew that a Marine wasn’t taking care of [his] child,”29 both “would look
badly [sic] on the Marine Corps.”30 Moreover, the trial counsel’s comments
also have a connection to the appellant’s guilty plea to disobeying the lawful
command of his superior commissioned officer.31
    Third, we find no error in the trial counsel’s remark that “the Marine
Corps does not and will not tolerate within its ranks, men who prey on
innocent members of the community, of their family, in this way.”32 We find
this comment within the permissible limits of arguing general deterrence for
the appellant’s egregious criminal conduct. “During sentencing argument, the
trial counsel is at liberty to strike hard, but not foul, blows. As a zealous
advocate for the government, trial counsel may argue the evidence of record,
as well as all reasonable inferences fairly derived from such evidence.” United
States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013) (citations and internal
quotation marks omitted). We are cognizant that “the argument by a trial
counsel must be viewed within the context of the entire court-martial,” and as
a result, “our inquiry should not be on words in isolation, but on the
argument as ‘viewed in context.’” United States v. Baer, 53 M.J. 235, 238
(C.A.A.F. 2000) (quoting United States v. Young, 470 U.S. 1, 16 (1985)); see
also Dunlop v. United States, 165 U.S. 486, 498 (1897) (“If every remark
made by counsel outside of the testimony were ground for a reversal,
comparatively few verdicts would stand, since in the ardor of advocacy, and
in the excitement of trial, even the most experienced counsel are occasionally
carried away by this temptation.”)).
   Assuming the trial counsel’s statements were plain and obvious error, we
would still decline relief because we see no evidence that the statements
resulted in material prejudice to any of the appellant’s substantial rights.
United States v. Pabelona, 76 M.J. 9, 12 (C.A.A.F. 2017). Military judges are
presumed to know the law and to follow it absent clear evidence to the
contrary. United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997). We
“presume that the military judge is able to distinguish between proper and
improper sentencing arguments[]” whether or not he noted any improprieties
on the record. United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007).
The appellant’s repeated failure to object at trial also indicates “that either
no error was perceived or any error committed was inconsequential.” United
States v. Sittingbear, 54 M.J. 737, 740 (N-M. Ct. Crim. App. 2001) (citation


   29   Id. at 46.
   30   Id. at 34, 46.
   31   Charge Sheet preferred on 13 Jan 2017.
   32   Record at 78.


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               United States v. MacDonald, No. 201700214


omitted). Lastly, the appellant faced 15 years of confinement, the trial
counsel argued for 60 months, and the military judge awarded only 30
months of confinement. We have no doubt that the sentence awarded was
supported by the weight of the evidence and was not influenced by any
allegedly improper arguments. See United States v. Frey, 73 M.J. 245, 251
(C.A.A.F. 2014); Halpin, 71 M.J. at 480.
                            III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.
   Chief Judge WOODARD and Senior Judge MARKS concur.
                                     For the Court




                                     R.H. TROIDL
                                     Clerk of Court




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