United States v. Smith , 2002 CAAF LEXIS 124 ( 2002 )

UNITED STATES, Appellee
v.
Gordon L. SMITH, Airman
U.S. Air Force, Appellant
No. 01-0492
Crim. App. No. S29720
United States Court of Appeals for the Armed Forces
Argued October 25, 2001
Decided February 8, 2002
GIEKRE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON and BAKER, JJ., and
SULLIVAN, S.J., joined.
Counsel
For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
Colonel Beverly B. Knott, Lieutenant Colonel Timothy W.
Murphy, and Lieutenant Colonel Gilbert J. Andia, Jr. (on
brief); Colonel James R. Wise.
For Appellee: Lieutenant Colonel Karen L. Manos (argued);
Colonel Anthony P. Dattilo and Major Lance B. Sigmon (on
brief); Major Bryan T. Wheeler.
Military Judge: J. Jeremiah Mahoney
This opinion is subject to editorial correction before final publication.
United States v. Smith, No. 01-0492/AF
Judge GIERKE delivered the opinion of the Court.
A special court-martial convicted appellant, pursuant to his
pleas, of two one-day unauthorized absences terminated by
apprehension, dereliction of duty, three specifications of
larceny, and two specifications of forgery, in violation of
Articles 86, 92, 121, and 123, Uniform Code of Military Justice
(UCMJ), 10 USC §§ 886, 892, 921, and 923, respectively. The
court-martial, composed of officer members, sentenced him to a
bad-conduct discharge, three months of hard labor without
confinement, forfeiture of $639.00 pay per month for six months,
and reduction to the lowest enlisted grade. The convening
authority disapproved the hard labor without confinement,
directed that appellant receive credit for illegal pretrial
punishment in the form of a $160.00 credit against the first
month’s forfeiture of pay, and approved the remainder of the
adjudged sentence. The Court of Criminal Appeals affirmed the
findings and sentence. 54 M.J. 783 (2001).
This Court granted review of the following issue:
WHETHER APPELLANT RECEIVED SUPPLEMENTAL CREDIT AGAINST HIS
ADJUDGED SENTENCE FOR THE NINETY-FOUR DAYS SPENT IN PRETRIAL
CONFINEMENT.
For the reasons that follow, we affirm.
Factual Background
Prior to trial, appellant was restricted for five days under
conditions that the military judge found to be tantamount to
confinement. The military judge ordered that appellant be given
credit for five days of pretrial confinement, in addition to any
other credit to which he might be entitled. See United States v.
Mason, 19 M.J. 274 (CMA 1985)(summary disposition) (appellant
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awarded pretrial confinement credit for “pretrial restriction
equivalent to confinement”).
Appellant also spent ninety-four days in pretrial
confinement. The military judge instructed the members that “the
length of pretrial restraint. . . [is] an appropriate factor to
consider in determining a sentence.” He also advised them that
“the accused will be automatically credited on a day-for-day
basis with pretrial confinement served against any sentence to
confinement adjudged by this court.” The members imposed no
confinement.
In his posttrial recommendation, the staff judge advocate
(SJA) informed the convening authority that appellant would not
receive any credit for pretrial confinement because he was not
sentenced to confinement. The SJA also recommended that the
convening authority disapprove the hard labor without
confinement, because both the SJA and the unit commander believed
“it would be more beneficial to put the Accused in excess leave
status as soon as possible instead of burdening his squadron with
the task of implementing and supervising this part of the
Accused’s sentence[.]"
In response, appellant’s defense counsel argued that
crediting the pretrial confinement against the adjudged hard
labor without confinement was inadequate compensation. See RCM
1003(b)(6), Manual for Courts-Martial, United States (2000 ed.)
(equating one day of confinement to one-and-a-half days of hard
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labor without confinement).• Defense counsel asked the convening
authority to disapprove the bad-conduct discharge to adequately
compensate appellant for his time in pretrial confinement.
The convening authority disapproved the hard labor without
confinement, as recommended by the SJA, and also ordered that
appellant be credited with $160.00 against the first month’s
forfeiture of pay as credit for the five days of illegal pretrial
restraint.
Discussion
Appellant has not challenged the adequacy of the convening
authority’s remedy for the five days of restriction tantamount to
confinement. He received credit equivalent to five days’ total
forfeitures, in accordance with the conversion formula in RCM
305(k).
Appellant contends, however, that he is entitled to
additional credit for his ninety-four days in pretrial
confinement as a matter of constitutional law under the Eighth
Amendment and as a matter of statutory law under Article 55,
UCMJ, 10 USC § 855. Because he was not sentenced to confinement,
he invites this Court to look to RCM 305(k) for guidance in
awarding credit against other adjudged punishments. While he
does not specifically assert that RCM 305 was violated, he argues
that ninety-four days of pretrial confinement without
•
This Manual provision was designated RCM 1003(b)(7) at the time
of appellant’s court-martial but was otherwise identical to the
current version. All other Manual provisions cited herein are
identical to the ones in effect at the time of appellant’s court-
martial.
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compensation violates Article 55 and the Eighth Amendment and
should, therefore, be treated like illegal pretrial confinement.
The Government argues that appellant is not entitled as a
matter of law to any credit, because he was not sentenced to
confinement. The Government disputes appellant’s claim that
lawful pretrial confinement violates Article 55 or the Eighth
Amendment.
This Court reviews de novo the question whether an appellant
is entitled to pretrial confinement credit. See United States v.
Ballesteros, 29 M.J. 14 (CMA 1989); United States v. Allen, 17 M.J.
126 (CMA 1984). This Court also reviews de novo the question
whether an appellant has been punished in violation of Article 55
or the Eighth Amendment. United States v. White, 54 M.J. 469, 471
(2001).
We hold that appellant’s lawful pretrial confinement did not
violate Article 55 or the Eighth Amendment. Generally, this
Court looks to federal case law interpreting the Eighth Amendment
to decide claims of an Article 55 violation. See United States
v. Avila, 53 M.J. 99, 101 (2000). Thus, we have considered
appellant’s claims of an Eighth Amendment violation and Article
55 violation together.
Pretrial confinement, imposed and administered in a lawful
manner, is not per se cruel or unusual. See Avila, supra at 101-
02 (pretrial confinement, even in solitary confinement, not per
se cruel or unusual). Appellant has pointed to no evidence that
he was treated in a cruel or unusual manner while in pretrial
confinement, and we find no such evidence in the record.
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Although appellant asserts that failure to give credit for
lawful pretrial confinement violates Article 55 and the Eighth
Amendment, he has cited no authority for that proposition, and we
have found none. His assertion is contrary to federal decisions
holding that no constitutional violation arises from failure to
give credit for pretrial detention unless there is a violation of
the Equal Protection Clause of the Fifth Amendment. See Palmer
v. Dugger, 833 F.2d 253, 256 (11th Cir. 1987); Johnson v. Smith,
696 F.2d 1334, 1340 (11th Cir. 1983). In civilian cases, credit
for lawful pretrial detention is regarded as a matter “of
legislative grace and not a constitutional guarantee.” Lewis v.
Cardwell, 609 F.2d 926, 928 (9th Cir. 1979).
Having concluded that the Eighth Amendment and Article 55 do
not entitle appellant to credit, we turn next to the question
whether appellant has any other statutory or regulatory right to
credit. There is no provision in the UCMJ or the Manual for
Courts-Martial that requires credit against an adjudged sentence
for lawful pretrial confinement. By its terms, RCM 305(k)
applies only to illegal pretrial confinement; it provides no
legal entitlement to credit for lawfully imposed pretrial
confinement.
Non-military federal prisoners are entitled under 18 USC
§ 3585(b) to “credit toward the service of a term of imprisonment
for any time [they] spent in official detention prior to the date
the sentence commences[.]” However, non-military federal
prisoners do not receive credit for pretrial confinement unless
their sentences include confinement in a correctional or penal
facility under the jurisdiction of the Bureau of Prisons (BOP).
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See Reno v. Koray, 515 U.S. 50, 62-63 (1995) (statute applies
only to persons detained in a BOP penal or correctional facility
and sentenced to confinement in a BOP penal or correctional
facility); United States v. Dowling, 962 F.2d 390, 391 (5th Cir.
1992) (credit for pretrial detention cannot be applied to
“confinement” in halfway house imposed as condition of
probation); Palmer v. Dugger, supra at 255 (no entitlement to
credit for pretrial detention if acquitted of offense for which
pretrial detention was imposed).
In Allen, this Court noted that 18 USC § 3568, the
predecessor to 18 USC § 3585(b), specifically exempted court-
martial sentences. 17 M.J. at 127. This Court concluded, however,
that the Secretary of Defense had voluntarily adopted the
pretrial confinement credit provisions of 18 USC § 3568 by
promulgating Department of Defense Instruction (DODI) 1325.4
(Oct. 7, 1968), which required that the procedures for computing
military sentences “will be in conformity with those published by
the Department of Justice, which govern . . . federal prisoners
and military prisoners[.]” Id. at 128. This directive was later
revised and reissued as DODI 1325.7 (July 17, 2001), without
significant change to the provision at issue in this case.
As written, 18 USC § 3585(b) and DODI 1325.7 apply only to
prisoners serving sentences to confinement. We decline to accept
appellant’s invitation to extend the Secretary of Defense’s
application of 18 USC § 3585(b) beyond its terms. Likewise, we
decline to extend RCM 305(k) beyond its terms. Congress has not
acted to require credit for lawful pretrial confinement, nor has
it constrained the authority of the President or the Secretary of
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Defense to grant credit. Thus, the decision whether to extend
DODI 1325.7 or RCM 305 to give pretrial confinement credit to
persons not sentenced to confinement is a matter of Executive
prerogative. To date, neither the President nor the Secretary of
Defense has exercised that prerogative. Accordingly, we hold
that there is no legal requirement that appellant be given credit
for his pretrial confinement.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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