United States v. Staff Sergeant MICHAEL E. HARRIS ( 2018 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant MICHAEL E. HARRIS
United States Army, Appellant
ARMY 20170100
Headquarters, United States Army Garrison, Fort Meade
Daniel G. Brookhart, Military Judge
Lieutenant Colonel Tyesha L. Smith, Staff Judge Advocate
For Appellant: Major Brendan R. Cronin, JA; Captain Meghan E. Mahaney, JA (on
brief); Captain Patrick G. Hoffman, JA; Captain Meghan E. Mahaney, JA (on reply
brief).
For Appellee: Colonel Tania M. Martin, JA; Major Cormac M. Smith, JA; Major
Meghan Peters, JA (on brief).
13 July 2018
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OPINION OF THE COURT
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FEBBO, Judge:
This case is before us for review pursuant to Article 66, Uniform Code of
Military Justice, 10 U.S.C. 866 [UCMJ]. 1 Appellant asserts the military judge erred
1
A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of desertion, in violation of Article 85, UCMJ and
three specifications of possessing child pornography in violation of Article 134,
UCMJ. The military judge sentenced appellant to a bad-conduct discharge,
confinement for five years, and reduction to the grade of E-1. The military judge
granted appellant 191 days of confinement credit. The convening authority approved
the adjudged sentence.
HARRIS—ARMY 20170100
in denying appellant’s request for 291 days of Allen 2 credit arising from his
confinement by the state of Florida.
The military judge found the appellant was confined by the state of Florida,
pending his charges there, because of his offense of failure to appear in Florida
court. Appellant contends the military judge’s finding, as to the reason for
appellant’s pretrial confinement, was clearly erroneous. We determine the military
judge’s finding was not clearly erroneous. As such, and in light of the controlling
Department of Defense Instruction, the military judge did not err when he denied
appellant’s request for 291 additional days of Allen credit.
BACKGROUND
In 2013, as part of an internet pornography investigation, the Florida
Department of Law Enforcement executed a search warrant of appellant’s home.
Appellant was arrested by the state of Florida, which charged him with forty-four
counts of possessing child pornography. 3 Appellant was free on bond awaiting his
trial for these offenses.
In January 2014, appellant fled to Cambodia. Appellant failed to appear for a
pretrial hearing in the Florida criminal court and his bond was forfeited.
Appellant intended to remain away permanently. Using skills learned as a
Military Police officer and military dog handler, he obtained a job as a dog trainer in
Cambodia. After an article about him was published in an English-language
newspaper and a reward was offered for his capture, appellant surrendered to
Cambodian authorities.
After spending a week in a Cambodian jail, appellant was escorted by U.S.
Marshalls from Cambodia and returned to military control in Japan on 5 November
2014. The U.S. Marshalls and a CID agent brought appellant back to Florida. On 6
November 2014, since his bond had been forfeited, he was placed in civilian
confinement. The military did not request the state of Florida to confine appellant.
The appellant was charged with failure of a defendant on bail to appear, a felony
under Florida law. Fla. Stat. § 843.15(a) (2018).
2
This term refers to day-for-day credit toward appellant’s sentence for lawful
pretrial confinement. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
3
If convicted of the 44 counts under Florida law, at 5 years confinement per count,
appellant would have been subject to up to 220 years confinement. See Fla. Stat. §§
827.071(5)(a), 775.082(3)(e).
2
HARRIS—ARMY 20170100
Appellant remained in civilian pre-trial confinement for approximately 22
months. On 22 August 2016, the Florida state’s attorney agreed to nolle prosequi, or
“not pursue” the child pornography charges due to an inability to secure a key
witness. Appellant agreed not to contest the remaining failure to appear charge—
and therefore entered a nolo contendre plea—in exchange for a sentence
recommendation from the prosecutor for 364 days in jail with credit for time served.
After appellant’s conviction, he was detained in Florida, until he was
transported back to his unit at Fort Meade on 31 August 2016. Appellant was placed
under restriction. On 4 October 2016, appellant was charged with desertion and
possession of child pornography and ordered into pretrial confinement.
On 22 February 2017, appellant pleaded guilty to all charges. The military
judge awarded appellant 191 days of confinement credit. 4 Appellant requested an
additional 291 days credit for the period of time appellant spent in pretrial
confinement in Florida that was in excess of his 364 day sentence for the failure to
appear charge. 5 Based on Department of Defense Instruction 1325.07,
Administration of Military Correctional Facilities and Clemency and Parole
Authority [DoDI 1325.07], (11 Mar. 2013), the military judge denied appellant’s
request for the additional 291 days of pretrial confinement by the state of Florida
because the military judge found appellant was confined by the state of Florida
because of his failure to appear.
4
The military judge awarded 8 days credit for the time appellant was held in a
Cambodian jail and transported back to Florida, 9 days credit for the time appellant
was held by the state of Florida for the military after his civilian plea of no contest,
33 days credit for restrictions tantamount to confinement while at his Fort Meade
unit, and 141 days for the time appellant spent in military pretrial confinement.
5
At trial, one of appellant’s arguments was that he should receive sentence credit
the same as if he were in the Federal civilian system. Even if there is a superficial
appeal to that argument, “[s]entencing procedures in Federal civilian courts can be
followed in courts-martial only to a limited degree.” Rule for Courts-Martial 1001
analysis at A21-71. Federal sentencing includes more mandatory minimum
sentences, sentencing guidelines, and much different pre-sentencing procedures than
used at courts-martial. Further, in the civilian Federal system, judges do not award
sentence credit at trial. The Bureau of Prisons calculates appropriate sentence credit
later. See United States v. Wilson, 503 U.S. 329, 333-35 (1992).
3
HARRIS—ARMY 20170100
LAW AND DISCUSSION
We review the question of whether the appellant was entitled to pretrial
confinement credit de novo. United States v. Smith, 56 M.J. 290, 292 (C.A.A.F.
2002). Unless they are clearly erroneous, we defer to a military judge’s findings of
fact but review the military judge’s application of those facts to the law de novo.
United States v. Harris, 66 M.J. 166, 168 (C.A.A.F. 2008).
In addressing appellant’s assigned error, we must answer two questions.
First, is appellant entitled to Allen credit as a matter of law. Second, if not entitled
to Allen credit, should this court provide appellant with relief under our Article
66(c) review.
Appellant argues that Allen requires day-for-day credit for 291 additional days
of civilian confinement in Florida as a matter of law. We disagree.
The Current Law
In conducting our de novo review of the law, this court finds persuasive the
analysis and holding of a Navy-Marine Corps Court of Criminal Appeals (NMCCA)
case addressing this issue. In United States v. Atkinson, the NMCCA held that Allen
was inapplicable because DoDI 1325.07, “does not require (or even allow) credit for
pretrial confinement at non-military facilities for unrelated offenses.” 74 M.J. 645,
648 (N-M. Ct. Crim. App. 2015), rev. denied, 75 M.J. 20 (C.A.A.F. 2015).
Prior to our superior court’s decision in Allen, “a military accused who had
served a period of pretrial confinement was not entitled to administrative credit
against his adjudged confinement.” United States v. DeLeon, 53 M.J. 658, 659
(Army Ct. Crim. App. 2000). In Allen, our superior court interpreted Department of
Defense Instruction 1325.4, Treatment of Military Prisoners and Administration of
Military Correction Facilities [DoDI 1325.4], (7 Oct. 1968), 6 “as voluntarily
incorporating the pre-sentence credit” procedures employed by the Department of
Justice (DOJ) for sentence computation. Allen, 17 M.J. at 128. As a result, the
Allen court held that these Federal procedures 7 applied to courts-martials. Id. “This
6
DoDI 1325.4, stated “procedures employed in the computation of sentences will be
in conformity with those published by the [DOJ], which govern the computation of
sentences of Federal prisoners and military prisoners under the jurisdiction of the
[DOJ].” DoDI 1325.4, p. 22.
7
The relevant part of these Federal procedures, now found in 18 U.S.C. § 3585,
require a defendant be given confinement credit, “as a result of any other charge for
(continued . . .)
4
HARRIS—ARMY 20170100
reading of DoDI 1325.4 is the sole basis for what trial practitioners for the past 30
years have called ‘Allen credit.’” Atkinson, 74 M.J. at 647.
As discussed in Atkinson, the DoD instructions have changed dramatically
since Allen. DoDI 1325.4 is no longer in effect, and has been replaced by DoDI
1325.07. We agree with the Atkinson court’s analysis of the current status of DoD
policy on this issue, and find we must apply the current DoDI to compute sentencing
credit, not the DoDI that existed when Allen was decided.
Plain Language
We begin our interpretation of DoDI 1325.07 where all such interpretation
must begin—with the plain language of the text. See e.g. United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 241 (1989).
DoDI 1325.07 does not contain the reference to following DOJ procedures
formerly found in DoDI 1325.4. Instead, the current instruction requires that
“[s]entence computation shall be calculated [in accordance with] DoD 1325.7-M.”
DoDI 1325.07, para. 3.a. DoD 1325.7-M, DoD Sentence Computation Manual [DoD
1325.7-M], (27 Jul. 2004), requires that prisoners receive “all sentence credit
directed by the military judge,” and that military judges “will direct credit for each
day spent in pretrial confinement . . . for crimes for which the prisoner was later
convicted.” DoD 1325.7-M, para. C2.4.2.
Critically, however, DoDI 1325.07 states:
Notwithstanding any other provision of this instruction or [DoD
1325.7-M], if a prisoner (accused) is confined in a non-military facility
for a charge or offense for which the prisoner had been arrested after
the commission of the offense for which the military sentence was
imposed, the prisoner (accused) shall receive no credit for such time
confined in the non-military facility when calculating his or her
sentence adjudged at court-martial.
DoDI 1325.07, para. 3.c (emphasis added).
As such, notwithstanding DoD 1325.7-M, which might otherwise grant credit,
the appellant is entitled to no credit for his time spent in Florida pretrial
(. . . continued)
which the defendant was arrested after the commission of the offense for which the
sentence was imposed; that has not been credited against another sentence.”
(emphasis added).
5
HARRIS—ARMY 20170100
confinement if he was in such pretrial confinement “for a charge or offense for
which [appellant] had been arrested after the commission of the offense for which
the military sentence was imposed . . . .” The crucial question is: what does the
DoDI mean by “confined . . . for a charge,” and specifically, what does the word
“for” mean in this context?
When a term is not otherwise defined, courts will accord that term its ordinary
meaning. United States v. Hendrix, (C.A.A.F. __M.J. __, slip op. at 5 (C.A.A.F. 19
Jun. 2018). The word “for” has different meanings in different contexts. In the
context at issue, we find the correct meaning of “for” is closest to “because of” or
“on account of.” Webster’s Third New International Dictionary 886 (1981).
DoDI 1325.07, para. 3.c therefore prohibits awarding credit for time spent in
pretrial confinement “in a non-military facility [because of] a charge or offense for
which the prisoner had been arrested after the commission of the offense for which
the military sentence was imposed . . . .”
Application of the Law to the Facts
Considering the plain language of DoDI 1325.07, the military judge’s finding
of fact that appellant was confined in Florida because of his offense of failure to
appear resolves the issue raised on appeal unless the military judge’s finding is
clearly erroneous.
The clearly erroneous standard of review is a heavy burden for an appellant to
overcome. Even if this court disagrees with the military judge’s characterization of
the facts, we will not decide a military judge’s factual findings are clearly erroneous
unless the record affords no other reasonable conclusion. “At least one court has
defined the clearly-erroneous standard by stating that it must be ‘more than just
maybe or probably wrong; it must . . . strike us as wrong with the force of a five-
week-old, unrefrigerated dead fish.’” United States v. French, 38 M.J. 420, 425
(C.M.A. 1993) (quoting Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866
F.2d 228, 233 (7th Cir. 1988)).
In this case, appellant was pending charges for child pornography when he
was placed in civilian confinement in Florida. The Florida child pornography
charges were not resolved until appellant’s guilty plea for failure to appear. While
these facts weigh in appellant’s favor, they are not conclusive of the question of
whether the appellant was actually in confinement because of the offense of failing
to appear. The military judge accurately observed appellant was not confined by the
state of Florida when he was facing only the child pornography charges. The state
of Florida did not confine appellant until after he fled to Cambodia and failed to
appear to face the Florida child pornography charges. Appellant was charged and
placed in pre-trial confinement for the offense of fleeing Florida’s criminal process.
6
HARRIS—ARMY 20170100
The state of Florida was not acting on behalf of the Army and he was not being held
in confinement at the request of the Army. The fact appellant’s confinement by the
state of Florida exceeded his eventual sentence for the crime of failure to appear
does not obligate the Federal government to lessen the appellant’s punishment for
different offenses against the Federal sovereign.
Under these circumstances, we cannot say that the military judge’s finding
that the appellant was in pretrial confinement because of failing to appear was
clearly erroneous. 8
Once it is settled that appellant was confined by the state of Florida because
of failing to appear, the result required by DoDI 1325.07 para. 3.c is clear: the
appellant was confined in a non-military facility because of an offense for which he
was arrested after the commission of the offense for which the military sentence was
imposed. Therefore, notwithstanding any credit appellant might have otherwise been
entitled to under DoD 1325.7-M, appellant is not entitled to credit for the time he
spent in Florida confinement pending trial for his failure to appear.
Article 66(c)
In exercising our Article 66(c) review of the findings and sentence approved
by the convening authority, we do not award appellant any additional confinement
credit. To the extent that the military judge’s ruling may appear harsh for not
granting credit for appellant’s confinement in Florida, we note that prior to
sentencing appellant, the military judge stated on the record that he fully considered,
as a mitigating factor, the lengthy period of time appellant spent in Florida pretrial
confinement.
8
Under the plain language of DoDI 1325.07, para. 3.c, it does not matter whether
appellant was also in civilian pretrial confinement because of the pending Florida
child pornography charges. Paragraph 3.c clearly states the restriction contained
therein applies notwithstanding any provision of DoD 1325.7-M, that may otherwise
provide for credit.
7
HARRIS—ARMY 20170100
CONCLUSION
Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.
Senior Judge MULLIGAN and Judge WOLFE concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
8