United States v. Adcock ( 2007 )

UNITED STATES, Appellee
v.
Heidi F. ADCOCK, First Lieutenant
U.S. Air Force, Appellant
No. 06-0714
Crim. App. No. 36018
United States Court of Appeals for the Armed Forces
Argued January 9, 2007
Decided May 3, 2007
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. STUCKY, J., filed a
dissent in which RYAN, J., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Colonel Gerald R. Bruce (argued); Lieutenant
Colonel Robert V. Combs and Captain Jamie L. Mendelson (on
brief).
Military Judge: R. Scott Howard
This opinion is subject to revision before final publication.
United States v. Adcock, No. 06-0714/AF
Judge ERDMANN delivered the opinion of the court.
First Lieutenant Heidi F. Adcock was charged with wrongful
use of cocaine and methamphetamine, larceny, and failure to obey
a restriction order in violation of Articles 112a, 121, and 92,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 921,
892 (2000). Pursuant to a pretrial agreement, Adcock entered
guilty pleas to each of the charges which were accepted by a
military judge sitting as a general court-martial. The military
judge sentenced Adcock to dismissal and confinement for fifteen
months. The sentence was approved by the convening authority.
The United States Air Force Court of Criminal Appeals affirmed
the findings and sentence in a 5-4 en banc decision. United
States v. Adcock, 63 M.J. 514 (A.F. Ct. Crim. App. 2006).
An essential expression of the Constitution’s due process
guarantee is the protection of accused servicemembers from
punishment prior to conviction and sentencing. United States v.
McCarthy, 47 M.J. 162, 164-65 (C.A.A.F. 1997); Bell v. Wolfish,
441 U.S. 520, 535 (1979). In addition to this constitutional
protection, Article 13, UCMJ, 10 U.S.C. § 813 (2000), prohibits
punishment prior to trial. The President has further addressed
pretrial punishment in Rule for Courts-Martial (R.C.M.) 304(f)
where he has directed that “[p]risoners being held for trial
shall not be required to . . . wear special uniforms prescribed
only for post-trial prisoners,” and that “[p]risoners shall be
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United States v. Adcock, No. 06-0714/AF
afforded facilities and treatment under regulations of the
Secretary concerned.” Under this authority, the Secretary of
the Air Force has promulgated regulations concerning the
treatment of pretrial confinees.
We granted review in this case to determine whether there
is a remedy for the conditions of Adcock’s pretrial confinement
in a civilian jail, which violated several provisions of Dep’t
of the Air Force, Instr. 31-205, The Air Force Corrections
System (Apr. 7, 2004) [hereinafter AFI 31-205].1 We find that
the military judge abused his discretion in failing to award
additional confinement credit under R.C.M. 305(k) and therefore
direct additional confinement credit.
BACKGROUND
The conduct underlying the charges in this case occurred
while Adcock was stationed at Travis Air Force Base (AFB),
California. A Pretrial Restraint Order was issued on January 3,
2004, which restricted Adcock to the confines of Travis AFB. On
January 19, 2004 she was ordered into pretrial confinement after
violating the restriction order by leaving the base.
1
We granted review of the following issue:
WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT’S
PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION
(AFI) 31-205, AND [sic] THE AIR FORCE CORRECTIONS
SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE
MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE
VIOLATION “INVOLVE[D] AN ABUSE OF DISCRETION”
PERMITTING CREDIT UNDER R.C.M. 305(k).
3
United States v. Adcock, No. 06-0714/AF
The Air Force does not maintain a pretrial confinement
facility at Travis AFB. Thus, military personnel who are
ordered into pretrial confinement are housed in civilian
facilities operated by Solano County pursuant to a Memorandum of
Agreement between the Travis AFB Security Forces Commander and
the Solano County Sheriff’s office. The Memorandum does not
reference any military regulations governing treatment of
pretrial confinees.
Adcock was initially placed in pretrial confinement in the
Solano County Jail in Fairfield, California. She was housed in
a cell which she shared with a series of female cellmates, many
who had been convicted of offenses such as larceny, burglary and
aggravated assault. On April 17, 2004, Adcock was transferred
to the Claybank Detention Facility, a division of the Solano
County Jail also in Fairfield, California. There she was housed
in an open bay room where she shared sleeping, living and toilet
facilities with nineteen other inmates, including convicted
inmates. At both facilities, Adcock wore a jumpsuit identical
to those of other inmates. The color of the jumpsuit worn by
the inmates depended on the security classification of the
individual inmate, not the inmate’s pretrial or post-trial
status. As of the date of her court-martial, Adcock had served
157 days of pretrial confinement in the two Solano County
facilities.
4
United States v. Adcock, No. 06-0714/AF
The Solano County Jail’s chief corrections officer, a
retired Air Force security policeman who specialized in law
enforcement and confinement, stated that the conditions in the
jails did not conform to Air Force standards and that Solano
County would not bring the facilities into conformance with
those standards. The corrections officer in charge of the
Claybank facility stated that her jail routinely had pretrial
confinees rooming with convicted inmates and did not distinguish
the uniforms of pretrial confinees and convicted inmates.
At Adcock’s trial the military judge accepted her guilty
pleas following a Care inquiry.2 Her 157 days of pretrial
confinement were credited against her fifteen month sentence.
Adcock moved for an additional 157 days of sentence credit based
on the Government’s violation of the uniform and commingling
provisions of AFI 31-205 during her pretrial confinement.
Although the military judge found that the conditions of
Adcock’s pretrial confinement violated AFI 31-205, he denied the
motion for additional confinement credit on the grounds that Air
Force officials acted in furtherance of a legitimate
governmental objective and demonstrated no intent to punish or
stigmatize the accused, utilizing the established legal analysis
for violations of Article 13, UCMJ.
2
United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
5
United States v. Adcock, No. 06-0714/AF
The Court of Criminal Appeals, which originally identified
this issue and had requested briefs, heard the case en banc.
Adcock, 63 M.J. at 516. A five-judge majority held that “AFI
31-205 on its face fails to evince any Secretarial intent to
create an entitlement to pretrial confinement credit for a
violation of its provisions.” Id. at 520. The lower court
reasoned that the provisions of AFI 31-205 relevant in this case
did not amount to “an unambiguous grant of a substantive right,”
and thus the denial of confinement credit could be upheld. Id.
The lower court also found no presidential intent to create an
enforceable right to confinement credit in either R.C.M. 304(f)
or R.C.M. 305(k). Id. at 520-21. It determined that the
relevant portions of both rules merely recognized preexisting
protections described in Article 13, UCMJ, or created by this
court in United States v. Suzuki, 14 M.J. 491, 492 (C.M.A.
1983). 63 M.J. at 520-21. The lower court held that neither
rule provided any basis for credit without a showing of improper
government purpose or intent to punish as required for an
Article 13, UCMJ, violation. Id. at 521. The four-judge
dissent concluded that violation of AFI 31-205 provided a proper
basis for relief and that Adcock would also be entitled to
relief under either R.C.M. 304(f), R.C.M. 305(k), or Article 13,
UCMJ. Id. at 528-30 (Mathews, J., concurring in part and
dissenting in part).
6
United States v. Adcock, No. 06-0714/AF
DISCUSSION
Adcock argues that she is entitled to pretrial confinement
credit based upon the clear and knowing violations of AFI 31-
205, para. 5.8.1.2. and para. 7.1.1. by Air Force officials.
She maintains that because these provisions were created
expressly for the protection of accused servicemembers’ rights,
they create enforceable rights to additional sentencing relief
on their own terms. Additionally, Adcock contends that the
violations of AFI 31-205 independently constitute a violation of
Article 13, UCMJ, and R.C.M. 304(f), both of which prohibit
pretrial punishment and provide a separate basis for sentencing
relief. Finally, Adcock urges this court to decide that the
military judge erred when he found no abuse of discretion on the
part of Air Force officials under R.C.M. 305(k).
The Government responds that the military judge properly
denied Adcock relief under Article 13, UCMJ, because Air Force
officials did not intend the impermissible pretrial confinement
conditions as punishment. It argues that AFI 31-205, R.C.M.
304(f), and R.C.M. 305(k) do not provide an enforceable right to
sentence relief independent of Article 13, UCMJ. Finally, the
Government claims that the “purpose or intent to punish” element
of an Article 13, UCMJ, inquiry applies equally to a military
judge’s review of pretrial confinement conditions under AFI 31-
205, R.C.M. 304(f), and R.C.M. 305(k).
7
United States v. Adcock, No. 06-0714/AF
This court defers to a military judge’s findings of fact
unless they are clearly erroneous. United States v. King, 61
M.J. 225, 227 (C.A.A.F. 2005). In this case, the underlying
facts are not in dispute, nor is the conclusion that the
conditions of Adcock’s pretrial confinement violated AFI 31-205.3
We review de novo the legal question of whether the established
facts and the violation of AFI 31-205 entitle Adcock to
additional sentencing credit.
As the court below noted, Congress has prohibited pretrial
punishment in the military justice system in Article 13, UCMJ:
Punishment prohibited before trial[.] No 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, but he may be subjected to minor punishment
during that period for infractions of discipline.
When a violation of Article 13, UCMJ, is alleged, we scrutinize
the government’s “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
3
The military judge and the Court of Criminal Appeals found that
the conditions of Adcock’s pretrial confinement violated AFI 31-
205. Adcock, 63 M.J. at 516-17. Before this court, Adcock did
not attack this finding and the Government did not certify any
issue concerning the correctness of the finding. Thus, we
conclude that the finding that Adcock’s pretrial confinement
violated AFI 31-205 is the law of the case. See United States
v. Lewis, 63 M.J. 405, 412 (C.A.A.F. 2006) (citing United States
v. Parker, 62 M.J. 459, 464 (C.A.A.F. 2006)).
8
United States v. Adcock, No. 06-0714/AF
such purposes are ‘reasonably related to a legitimate
governmental objective.’” King, 61 M.J. at 227 (quoting Bell,
441 U.S. at 539; and citing McCarthy, 47 M.J. at 165).
R.C.M. 304(f) provides:
Punishment prohibited. Pretrial restraint is not
punishment and shall not be used as such. No person
who is restrained pending trial may be subjected to
punishment or penalty for the offense which is the
basis for that restraint. Prisoners being held for
trial shall not be required to undergo punitive duty
hours or training, perform punitive labor, or wear
special uniforms prescribed only for post - trial
prisoners. This rule does not prohibit minor
punishment during pretrial confinement for infractions
of the rules of the place of confinement. Prisoners
shall be afforded facilities and treatment under
regulations of the Secretary concerned.
We agree with the majority below when it found that R.C.M.
304(f) was “based on Article 13.” Adcock, 63 M.J. at 520-21
(citing Manual for Courts-Martial, United States, Analysis of
the Rules for Courts-Martial app. 21 at A21-16 (2005 ed.)).
However, the President went well beyond the plain language of
Article 13, UCMJ, by specifying certain conduct that is
expressly prohibited and also by delegating to the service
secretaries the authority to enact rules concerning pretrial
facilities and the treatment of pretrial confinees. While the
Court of Criminal Appeals found that the delegation language
merely reflected a grant of “broad discretion” to confinement
officials, we find no such grant in the language of the Rule.
Id. at 521. To the contrary, the plain language of R.C.M.
9
United States v. Adcock, No. 06-0714/AF
304(f) clearly vests the service secretaries with the discretion
to enact the rules but makes no reference to confinement
officials. The secretaries, in turn, can make the regulations
mandatory or advisory in nature.
Pursuant to the R.C.M. 304(f) delegation of authority, the
Secretary of the Air Force promulgated an Air Force Instruction
that addresses pretrial confinement facilities and the treatment
of pretrial confinees in the Air Force. AFI 31-205, in relevant
part, provides:
para. 1.2.2.2.2. When seeking a correctional facility
outside the DoD, the standards of confinement and
treatment of inmates must meet or exceed what would be
provided in a DoD facility.
. . . .
para. 5.8.1.2. All pre-trial detainees will be housed
in separate cells or sleeping areas, separated by
sight, from post-trial inmates.
. . . .
para. 7.1.1. Pre-trial detainees. Military members
in pre-trial status are not convicted of a crime and
will continue to wear the BDU uniform with authorized
rank insignia, badges, patches, devices, etc. . . .
Pre-trial detainees will not be placed in the same
color distinctive uniform worn by adjudged and
sentenced inmates [in accordance with R.C.M.] 304(f).
As noted, it is not contested that the confinement
authorities at Travis AFB violated these provisions of AFI 31-
205 when Adcock was commingled with, and required to wear the
same uniform as, convicted inmates. The issue before this court
is whether there is a remedy for these violations.
10
United States v. Adcock, No. 06-0714/AF
Although R.C.M. 304(f) does not grant confinement officials
the discretion to disregard service regulations pertaining to
pretrial confinees, it does not necessarily follow that pretrial
confinees held in conditions that violate these regulations may
assert an independent right to sentencing credit on that basis
alone. As we have previously held, confinement in violation of
service regulations does not create a per se right to sentencing
credit under the UCMJ. King, 61 M.J. at 228; McCarthy, 47 M.J.
at 166 (citing United States v. Moore, 32 M.J. 56, 60 (C.M.A.
1991)).
This rule reflects the long-standing principle that not all
violations of law result in individually enforceable remedies.
See United States v. Green, 14 M.J. 461, 464 (C.M.A. 1983);
United States v. Whiting, 12 M.J. 253, 255 (C.M.A. 1982).
However, “‘[i]t is well-settled that a government agency must
abide by its own rules and regulations where the underlying
purpose of such regulations is the protection of personal
liberties or interests’.” United States v. Dillard, 8 M.J. 213,
213 (C.M.A. 1980) (quoting United States v. Russo, 1 M.J. 134,
135 (C.M.A. 1975) (citations omitted)). The purposes of the
provisions of AFI 31-205 at issue in this case are consistent
with treatment of pretrial confinees as innocent individuals and
11
United States v. Adcock, No. 06-0714/AF
certainly are designed to protect their interests.4 AFI 31-205
reflects a decision by the Air Force to ensure that
servicemembers who are housed in civilian jails are treated in a
manner that recognizes the presumption of innocence.
R.C.M. 305(k) provides in relevant part:
Remedy. The remedy for noncompliance with subsections
(f), (h), (i), or (j) of this rule shall be an
administrative credit against the sentence adjudged
for any confinement served as the result of such
noncompliance. Such credit shall be computed at the
rate of 1 day credit for each day of confinement
served as a result of such noncompliance. The military
judge may order additional credit for each day of
pretrial confinement that involves an abuse of
discretion or unusually harsh circumstances. This
credit is to be applied in addition to any other
credit the accused may be entitled as a result of
pretrial confinement served.
Emphasis added.
The subsections of R.C.M. 305 referenced in subsection (k)
set forth specific procedural safeguards, such as an accused
servicemember’s right to counsel and to prompt review following
imposition of pretrial confinement. See, e.g., R.C.M. 305(f),
(h), (i), and (j). The majority below held, and the Government
now argues, that the references to these other subsections
4
See United States v. Palmiter, 20 M.J. 90, 98 (C.M.A. 1985)
(Everett, C.J., concurring in the result) (“When pretrial
detainees -- who have been charged with or have not been proven
guilty of any crime -- are placed in immediate association with
sentenced prisoners for work or some other required activity,
this close association occasionally will involve enhanced danger
to physical safety. Typically, it will tend to stigmatize the
pretrial detainees; and the intentional imposition of stigma is
itself a punishment . . . .”)
12
United States v. Adcock, No. 06-0714/AF
reflect a presidential intent in subsection (k) to enforce only
the specific rights enumerated, not to create an independent
right to sentencing credit. Adcock, 63 M.J. at 521.
In particular, the lower court observed that R.C.M.
305(k)’s authorization of additional credit for “unusually harsh
circumstances” mirrors language from Suzuki, 14 M.J. at 492
(upholding a military judge’s grant of administrative credit for
“unusually harsh circumstances” in pretrial confinement). 63
M.J. at 521. Thus, it reasoned, this language was intended only
to incorporate existing case law and not to create a new basis
for pretrial confinement credit. Id. at 521.
Regardless of its origin, the President’s addition of “an
abuse of discretion or unusually harsh circumstances” as a basis
for additional confinement credit in 1998 goes beyond the
procedural protections related to imposition and review of
pretrial confinement in R.C.M. 305(f), (h), (i), and (j).5 While
the Executive Order that added this language provided no
additional discussion or analysis, the two clauses must be
understood to have distinct and independent meaning. Indeed,
“[o]ne of the basic canons of statutory interpretation is that
statutes should be interpreted to give meaning to each word.”
Lingle v. PSB Bancorp, Inc., 123 F. App’x 496, 502 (3d Cir.
2005) (citing United States v. Menasche, 348 U.S. 528, 538-39
5
Exec. Order 13086, 63 Fed. Reg. 30065, 30067 (May 27, 1998).
13
United States v. Adcock, No. 06-0714/AF
(1955)); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(noting that a statute ought “‘to be so construed that, if it
can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant’” (quoting Duncan v. Walker,
533 U.S. 167 (2001))).
The 1998 amendment clearly authorized additional sentence
credit for pretrial confinement that involves either “unusually
harsh circumstances” or “an abuse of discretion.” On its face,
this “abuse of discretion” language permits a military judge to
award additional credit based on conduct by confinement
officials that amounts to an abuse of discretion. The
President’s establishment of this additional basis for credit
toward a servicemember’s sentence is consistent with the
President’s authority to prescribe rules and regulations
implementing the UCMJ, including provision of “additional or
greater rights” than those provided for by Congress. United
States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997); United
States v. McGraner, 13 M.J. 408, 414-15 (C.M.A. 1982); Article
36, UCMJ, 10 U.S.C. § 836 (2000). Contrary to the position
taken by the dissent, we are not now creating a new rule. The
1998 amendment established an additional basis for credit prior
to Appellant’s trial.
A military judge’s discretion to award additional credit
for abuses of discretion in pretrial confinement does not create
14
United States v. Adcock, No. 06-0714/AF
an enforceable per se right to additional sentence credit. As
we have previously held, servicemembers may only enforce a per
se right to credit by demonstrating an Article 13, UCMJ,
violation. King, 61 M.J. at 227. However, under R.C.M. 305(k),
a servicemember may identify abuses of discretion by pretrial
confinement authorities, including violations of applicable
service regulations, and on that basis request additional
confinement credit. A military judge’s decision in response to
this request is reviewed, on appeal, for abuse of discretion.
See United States v. Rock, 52 M.J. 154, 156 (C.A.A.F. 1999).
We turn now to the question of whether the military judge
properly exercised his discretion under R.C.M. 305(k) when he
refused to award additional credit based on Adcock’s pretrial
confinement. It is not argued that the Air Force officials at
Travis AFB were unaware of their own regulations which
proscribed commingling and also required that pretrial confinees
wear the battle dress uniform (BDU) and not be placed in the
same color uniforms worn by convicted inmates. R.C.M. 304(f)
provides that “[p]risoners shall be afforded facilities and
treatment” (emphasis added) as prescribed by the service
secretaries. AFI 31-205 bears the phrase, “COMPLIANCE WITH THIS
PUBLICATION IS MANDATORY” in bold capital letters at the top of
15
United States v. Adcock, No. 06-0714/AF
its first page.6 An introductory paragraph of the regulation,
para. 1.2.2.2.2., directs that “[w]hen seeking a correctional
facility outside the DoD, the standards of confinement and
treatment of inmates must meet or exceed what would be provided
in a DoD facility.” (emphasis added).
For almost thirty years this court’s decisions treated
commingling of pretrial and post-trial inmates as per se
pretrial punishment in violation of Article 13, UCMJ.7 Although
in United States v. Palmiter, 20 M.J. 90, 96 (C.M.A. 1985),8 the
court determined that commingling “without more” would not
automatically constitute a violation of Article 13, UCMJ,
service regulations can provide greater protections than Article
13, UCMJ, and, in fact, most services have continued to
explicitly outlaw commingling of pretrial confinees with
convicted inmates. See, e.g., Dep’t of the Army, Reg. 190-47,
Military Police, The Army Corrections System, para. 3-2.i. (June
15, 2006); Dep’t of the Navy, Secretary of the Navy Instr.
6
There is no dispute that compliance with AFI 31-205 is
mandatory. At oral argument the Government argued that the
“mandatory” phrase in the regulation was redundant since all Air
Force Instructions are mandatory.
7
See, e.g., United States v. Bayhand, 6 C.M.A. 762, 770-71, 21
C.M.R. 84, 92-93 (1956); United States v. Nelson, 18 C.M.A. 177,
181, 39 C.M.R. 177, 181 (1969); United States v. Pringle, 19
C.M.A. 324, 326, 41 C.M.R. 324, 326 (C.M.A. 1970); United States
v. Bruce, 14 M.J. 254, 256 (C.M.A. 1982).
8
The majority decision in Palmiter was a one-judge decision
(Judge Cox), with Chief Judge Everett writing a concurring
opinion supporting the result on a different basis and Judge
Fletcher not participating.
16
United States v. Adcock, No. 06-0714/AF
1640.9C, Department of the Navy Corrections Manual §§
7103.2.b(2)(a), 12502.3.b. (Jan. 3, 2006). It is within the
province of the executive branch, not this court, to change
these requirements.
AFI 31-205, para. 5.8.1.2. directs that “[a]ll pre-trial
detainees will be housed in separate cells or sleeping areas,
separated by sight, from post-trial inmates.” Placing pretrial
confinees in the same uniforms as those worn by convicted
inmates is prohibited by both AFI 31-205, para. 7.1.1. and
R.C.M. 304(f) and AFI 31-205 goes on to require that pretrial
confinees wear their BDU uniform while in pretrial confinement.
Nothing in AFI 31-205 requires a showing of intent to punish or
improper government purpose to establish a violation or a remedy
for that violation. Despite these prohibitions, there have
apparently been “numerous” challenges to Travis AFB’s pretrial
confinement program prior to Adcock’s appeal. Adcock, 63 M.J.
at 524 (Mathews, J., concurring in part and dissenting in
part).9 Nevertheless Air Force authorities failed to take any
action to remedy the conditions, request that the rules be
changed or request a secretarial waiver from the provisions.
9
The dissent below noted that when a military judge in an
unrelated case granted pretrial confinement credit based on the
Solano County facilities’ failure to comply with Air Force
regulations, Travis AFB officials considered moving Adcock to a
military facility, but concluded that the cost would be
prohibitive and left her in the civilian jail. Adcock, 63 M.J.
at 524.
17
United States v. Adcock, No. 06-0714/AF
While it could be argued that the officials’ knowing
indifference to breaches of AFI 31-205 and R.C.M. 304(f)
demonstrated the intent to punish required for an Article 13,
UCMJ, violation, we need not reach that issue. The action of
Travis AFB officials in knowingly and deliberately violating Air
Force regulatory provisions designed to safeguard the rights of
Air Force members amounted to an abuse of discretion under
R.C.M. 305(k). These regulations were clearly intended to
safeguard accused servicemembers’ rights to treatment consistent
with the presumption of innocence. See AFI 31-205, para.
7.1.1.; see, e.g., United States v. Kaiser, 58 M.J. 146, 150
(C.A.A.F. 2003) (citing United States v. Washington, 57 M.J.
394, 402 (C.A.A.F. 2002) (Baker, J., concurring)); Dunlap v.
Convening Authority, 23 C.M.A. 135, 140, 48 C.M.R. 751, 756
(1974) (Duncan, C.J., dissenting).
Violations of service regulations prescribing pretrial
confinement conditions provide a basis for a military judge, in
his or her discretion, to grant additional credit under the
criteria of R.C.M. 305(k). They do not independently trigger a
per se right to such credit enforceable by the servicemember.
Accordingly, a military judge should consider violations of
service regulations as a basis for pretrial confinement credit
under R.C.M. 305(k) when those regulations reflect long-standing
18
United States v. Adcock, No. 06-0714/AF
concern for the prevention of pretrial punishment and the
protection of servicemembers’ rights.
Administrative relief under R.C.M. 305(k) is appropriate
where, as here, confinement officials have knowingly and
deliberately violated provisions of service regulations designed
to protect the rights of presumptively innocent servicemembers.
Under the circumstances of this case, we hold that the military
judge abused his discretion when he denied Adcock’s request for
credit based on “pretrial confinement that involves an abuse of
discretion” under R.C.M. 305(k). On the basis of this erroneous
application of R.C.M. 305(k), the military judge denied Adcock’s
request for additional pretrial confinement credit of 157 days.
As a result, Adcock was prejudiced by this denial as it deprived
her of 157 days of confinement credit.
We hold that the Court of Criminal Appeals erred in
concluding that there was no basis for affording Adcock
additional sentencing credit for the violations of AFI 31-205.
As the issue of additional administrative credit does not affect
the findings and sentence as affirmed by the lower court, we
need not set aside the decision but will afford appropriate
relief in our decretal paragraph.
DECISION
The findings and sentence as affirmed by the United States
Air Force Court of Criminal Appeals are affirmed. Appellant
19
United States v. Adcock, No. 06-0714/AF
will be credited with an additional 157 days of confinement
served.
20
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STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):
At trial, the military judge granted Appellant day-for-day
credit for each of the 157 days she spent in pretrial
confinement, as required by United States v. Allen, 17 M.J. 126(C.M.A. 1984). Appellant moved the court to grant additional
pretrial confinement credit because, contrary to Air Force
Instr. 31-205, The Air Force Corrections System (Apr. 7, 2004)
[hereinafter AFI 31-205], while confined in a civilian facility,
she was housed with post-conviction inmates and was not
permitted to wear her military battle dress uniform (BDU). The
military judge found these two conditions of her pretrial
confinement violated AFI 31-205, but he refused to grant her
additional credit against her sentence. In an en banc decision,
the United States Air Force Court of Criminal Appeals found no
abuse of discretion and affirmed. United States v. Adcock, 63
M.J. 514 (A.F. Ct. Crim. App. 2006).
The majority holds that the military judge abused his
discretion and grants Appellant an additional 157 days of credit
against her sentence to confinement. I dissent. The military
judge did not abuse his discretion, and Appellant is not
entitled to 157 days of additional credit.
I.
“No person, while being held for trial, may be subjected to
punishment or penalty other than arrest or confinement upon the
United States v. Adcock, 06-0714/AF
charges pending against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the circumstances
require to insure his presence . . . .” Article 13, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000).
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 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).
United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).
The President implemented Article 13, UCMJ, in Rule for
Courts-Martial (R.C.M.) 304(f), which provides as follows:
Pretrial restraint is not punishment and shall not be
used as such. No person who is restrained pending
trial may be subjected to punishment or penalty for
the offense which is the basis for that restraint.
Prisoners being held for trial shall not be required
to undergo punitive duty hours or training, perform
punitive labor, or wear special uniforms prescribed
only for post-trial prisoners. This rule does not
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prohibit minor punishment during pretrial confinement
for infractions of the rules of the place of
confinement. Prisoners shall be afforded facilities
and treatment under regulations of the Secretary
concerned.
In R.C.M. 305(f), (h), (i), and (j), the President
established a set of procedural rules for the imposition and
review of pretrial confinement. See Manual for Courts-Martial,
United States, Analysis of the Rules for Courts-Martial app. 21
at A21-17 to A21-21 (2005 ed.). To ensure the procedural rules
are followed, the President ordered that an accused be granted
day-for-day credit for noncompliance. R.C.M. 305(k).
Additionally, “[t]he military judge may order additional
credit for each day of pretrial confinement that involves an
abuse of discretion or unusually harsh circumstances.” Id.(emphasis added). The military judge has discretion as to
whether to order additional credit and, if so, the appropriate
amount in either of these two situations. See id.The phrase “abuse of discretion” as used in R.C.M. 305(k)
must be read in conjunction with R.C.M. 305(j), which is the
only other place this phrase appears in R.C.M. 305. R.C.M.
305(j) requires that, upon motion of the accused, the military
judge must review for an abuse of discretion the seven-day
reviewing officer’s decision, made pursuant to R.C.M. 305(i)(2),
to continue the pretrial confinement of an accused. It is
transparent that the phrase “abuse of discretion” refers to the
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military judge’s review of the seven-day reviewing officer’s
consideration of all prior decisions by military authorities to
place and retain a servicemember in pretrial confinement. See
R.C.M. 305(h)(2); R.C.M. 305(i)(1). R.C.M. 305(k) thus
empowers, but does not require, the military judge to award
additional confinement credit for an abuse of discretion in a
decision to continue an accused’s confinement.
The phrase “abuse of discretion” in R.C.M. 305(k) does not
refer to the conditions of an accused’s confinement. R.C.M.
305(k) neither empowers the military judge nor is meant to be
used by this Court as a tool to examine and second-guess every
decision made by confinement officials as to the place or
circumstances of an accused’s confinement. Rather, it is the
“unusually harsh circumstances” prong of R.C.M. 305(k) that the
President used to describe the conditions of pretrial
confinement that permit the military judge to award additional
confinement under R.C.M. 305(k).
II.
The Secretary of the Air Force fulfilled his
responsibilities under R.C.M. 304(f) by issuing AFI 31-205. It
provides that Air Force “[i]nmates in military or nonmilitary
institutions are subject to that institution’s rules or
directives including rules on discipline and treatment” (para.
1.2.2.); the standards of confinement and treatment of inmates
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United States v. Adcock, 06-0714/AF
in non-Department of Defense (DoD) facilities must meet or
exceed what would be provided in DoD facilities (para.
1.2.2.2.2.); all pretrial detainees are to be housed in separate
cells, separated by sight, from post-trial inmates (para.
5.8.1.2.); and pretrial detainees are to continue to wear the
BDU (para. 7.1.1.). Compliance with AFI 31-205 is mandatory.
III.
The military judge ruled that there was a legitimate
nonpunitive governmental objective for subjecting the accused to
pretrial confinement and that there was no intent to punish or
stigmatize her. The military judge also concluded that that the
conditions of Appellant’s confinement violated AFI 31-205. This
Court granted review of only one issue -- the issue Appellant
assigned as error:
WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT’S
PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION
(AFI) 31-205, AND [sic] THE AIR FORCE CORRECTIONS
SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE
MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE
VIOLATION “INVOLVE[D] AN ABUSE OF DISCRETION”
PERMITTING CREDIT UNDER R.C.M. 305(K).
Appellant did not assign as error, and we did not grant review
of, any other issue, including whether the conditions of her
pretrial confinement violated R.C.M. 304(f), involved
noncompliance with the pretrial confinement procedural rules of
R.C.M. 305, or were unduly harsh. As noted above, a claim
alleging an abuse of discretion for which additional credit is
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United States v. Adcock, 06-0714/AF
warranted under R.C.M. 305(k) relates only to the decision to
place and retain a servicemember in pretrial confinement.
Appellant cannot avail herself of the R.C.M. 305(k) credit
relating to an abuse of discretion based on her assertion that
her conditions of confinement violated AFI 31-205.
IV.
The majority notes with approval previous holdings of this
Court that “confinement in violation of service regulations does
not create a per se right to sentencing credit under the UCMJ”
and “the long-standing principle that not all violations of law
result in individually enforceable remedies.” Nevertheless,
they assert that the military judge abused his discretion in not
awarding Appellant 157 days of additional credit because the
confinement officials abused their discretion in confining
Appellant in a facility that did not meet the standards of AFI
31-205, even though Appellant never complained about those
conditions prior to trial. An abuse of discretion occurs when
the military judge’s findings of fact are clearly erroneous, the
military judge’s decision is influenced by an erroneous view of
the law, or the military judge’s decision is outside the range
of choices arising from the applicable facts and law. United
States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United
States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995); United
States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).
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None of these circumstances exist here. The military judge
and the lower court were correct in stating and applying the
law. The majority does not suggest that the military judge’s
findings of fact were clearly erroneous. Instead, the majority
articulates a new legal standard and then finds that the
military judge’s decision was influenced by an erroneous view of
the law because he did not divine this new rule -- if one of the
services fails to follow its own regulation on pretrial
confinement, it amounts to an abuse of discretion for which the
accused is entitled to additional credit, even if there is no
intent to punish and the circumstances of the confinement were
not unusually harsh.
The error of the majority is threefold. First is the
failure to limit the phrase “abuse of discretion” as used in
R.C.M. 305(k) to review of decisions by military authorities to
place and retain a servicemember in pretrial confinement. The
second is going beyond the granted issue in an attempt to
address the conditions of Appellant’s confinement as a basis of
relief. Third, and finally, is the establishment of a new right
to confinement credit when there is a knowing and deliberate
violation of service regulations even if there was no Article
13, UCMJ, violation.
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United States v. Adcock, 06-0714/AF
V.
The President promulgated R.C.M. 305 to establish uniform
procedures for the imposition and review of pretrial
confinement. In the past, we have required servicemembers to
establish a violation of Article 13, UCMJ, before being entitled
to the additional pretrial confinement credit of R.C.M. 305(k)
for “unusually harsh circumstances.” See United States v.
Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006). There is no
evidence that, in promulgating R.C.M. 304(f) or R.C.M. 305, the
President intended to require or permit military judges to grant
confinement credit for violations of service confinement
regulations without more. Nor is there any evidence the
Secretary of the Air Force intended that violations of AFI 31-
205 would result in pretrial confinement credit. Although the
instruction is mandatory (as opposed to aspirational), the
Secretary has other means of ensuring compliance short of
granting an accused pretrial confinement credit.
The majority’s resolution of this case appears to overrule,
sub silentio, the requirement in Crawford, 62 M.J. at 414, and
King, 61 M.J. at 227, that an accused establish a violation of
Article 13, UCMJ, before the military judge is entitled to grant
additional confinement credit under R.C.M. 305(k) for conditions
of confinement alleged to be “unusually harsh circumstances.”
In cases alleging a knowing and deliberate violation of the
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United States v. Adcock, 06-0714/AF
service’s confinement regulation, the majority also seems to
abandon the inference that the failure to complain about the
conditions of pretrial confinement “is strong evidence that the
accused is not being punished in violation of Article 13.”
United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994)
overruled by United States v. Inong, 58 M.J. 460, 463-
65(C.A.A.F. 2003) (holding prospectively that failure at trial
to seek sentence relief for pretrial punishment or confinement
waives the issue on appeal absent plain error). It also
suggests that, at least when the terms of an accused’s
confinement are a knowing and deliberate violation of the
service regulation, the accused does not have to complain.
This decision leads to two consequences of concern to me.
First, it involves this Court in areas relating to facilities,
conditions of confinement, and administrative decisions with
respect to prisoners where there is no Article 13, UCMJ,
violation. The President gave authority to the service
secretaries to address these matters. See R.C.M. 304(f).
Second, it will encourage servicemembers to spend their time in
pretrial confinement poring over service regulations, cataloging
every possible discrepancy to raise as a reason for additional
confinement credit, even if the actual conditions of confinement
are not unduly harsh. At trial, military judges will face
protracted litigation concerning the minutiae of confinement
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United States v. Adcock, 06-0714/AF
programs and whether a particular facility or guard violated
some provision of a service regulation. Appellate court dockets
will be flooded with pleas that military judges abused their
discretion in not granting additional credit. Ultimately, this
Court may find itself the de facto supervisor of substantive
conditions of confinement involving members of the armed forces
-- a function that we are exceedingly ill suited to perform.
Such a result is not mandated by either our laws or regulations.
Accordingly, I dissent.
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