United States v. Josey , 2003 CAAF LEXIS 161 ( 2003 )

UNITED STATES, Appellee
v.
Lawrence E. JOSEY, Master Sergeant
U.S. Air Force, Appellant
No. 02-0212
Crim. App. No. 33745
United States Court of Appeals for the Armed Forces
Argued October 15, 2002
Decided February 19, 2003
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Jennifer K. Martwick (argued); Colonel Beverly B.
Knott, Major Terry L. McElyea, Major Jeffrey A. Vires and Captain Shelly
W. Schools (on brief).
For Appellee: Major Thomas Taylor (argued); Colonel Anthony P. Dattilo,
Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon
(on brief).
Military Judge: H.P. Sweeney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Josey, No. 02-0212/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of failure
to go to his appointed place of duty, violation of a lawful
general regulation that prohibited personal use of a government
credit card, two specifications of wrongfully using cocaine, and
making and uttering checks and then dishonorably failing to
maintain sufficient funds to cover them, in violation of
Articles 86, 92, 112a, and 134, Uniform Code of Military Justice
(hereinafter UCMJ), 10 U.S.C. §§ 886, 892, 912a, and 934,
(2002), respectively. He was sentenced to confinement for 8
years, forfeiture of all pay and allowances, and reduction to E-
1. The convening authority reduced Appellant's confinement to 6
years, and otherwise approved the sentence.
The Court of Criminal Appeals set aside the specifications
involving the use of cocaine as incorrect in law, affirmed the
balance of the findings, and set aside the sentence. The court
authorized a rehearing on the two cocaine specifications at the
discretion of the convening authority. The court added that if
the convening authority determined that a rehearing on those
specifications would be impractical, the convening authority
could dismiss those specifications and either reassess the
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sentence or order a sentence rehearing on the remaining findings
of guilty.
The case was referred to a successor convening authority,
who determined that a rehearing would be impractical. The
successor convening authority dismissed the specifications of
cocaine use, and he reassessed the sentence. The sentence
approved by the convening authority consisted of forfeiture of
$600.00 pay per month for 4 months and reduction to E-6. United
States v. Josey, 56 M.J. 720, 721 (A.F. Ct. Crim. App. 2002).
Upon further review, the Court of Criminal Appeals affirmed
both the remaining findings and the sentence as approved by the
convening authority. Id. at 722-723. In addition, the court
directed that Appellant receive credit for confinement served
following the initial convening authority’s action. The court
held that the credit would be applied against the forfeitures,
but not against the reduction. Id. at 722, citing United States
v. Rosendahl, 53 M.J. 344, 347-48 (C.A.A.F. 2000).
On Appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT IS ENTITLED TO CREDIT
AGAINST HIS REDUCTION IN RANK FOR SERVING 30
MONTHS AND 28 DAYS OF POST-TRIAL CONFINEMENT
AS PART OF A SENTENCE WHICH WAS LATER SET
ASIDE AND WHERE THE SUBSEQUENTLY APPROVED
SENTENCE DID NOT INCLUDE CONFINEMENT.
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We conclude that Appellant is not entitled to credit under
Rosendahl, and we remand the case for further consideration for
the reasons set forth in Part II of this opinion.
I. BACKGROUND
In Rosendahl, we noted that service members are protected
with respect to each of the three components of the
constitutional prohibition against double jeopardy. “In the
military, as in civilian life, the following are prohibited: (1)
trial for the same offense after acquittal; (2) trial for the
same offense after conviction; and (3) multiple punishments for
the same offense.” 53 M.J. at 347. See Articles 44, 63, and
75(a), UCMJ, 10 U.S.C. §§ 844, 863, 875(a)(2000); Rule for
Courts-Martial (hereinafter R.C.M.) 810(d)(1) and 1107(f)(5)(A),
Manual for Courts-Martial, United States (2002 ed.)(hereinafter
MCM). See also North Carolina v. Pearce, 395 U.S. 711 (1969).
The issue of multiple punishments presents a unique
situation in the military justice system because the court-
martial process serves disciplinary as well as criminal law
functions. A critical element of the disciplinary process
involves the authority to include in the sentence certain
elements that affect military personnel administration, such as
forfeiture of pay, restriction to specified limits, reprimands,
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reduction in grade, and punitive discharges. See R.C.M.
1003(b).
We considered in Rosendahl the issue of whether it was
appropriate to provide credit against prior punishment when the
sentence adjudged in the first proceeding involved a traditional
criminal law punishment (e.g., confinement) and the sentence
adjudged in the second proceeding involved a disciplinary
consequence affecting personnel administration (e.g., a punitive
discharge). We concluded that the conversion formula set forth
in the Manual for Courts-Martial for crediting improper
confinement under R.C.M. 305(k) provided an appropriate measure
for crediting various types of punishment for purposes of former
jeopardy, including confinement, hard labor without confinement,
restriction, forfeitures, and fines. 53 M.J. at 347.
We also took note of the Drafter’s Analysis of R.C.M.
305(k), which observed that the Rule did not provide a
conversion formula for reduction and punitive separations
“``because these penalties are so qualitatively different from
confinement that the fact that an accused has served confinement
which was technically illegal should not automatically affect
these forms of punishment´. Manual, supra, at A21-20.” Id. We
concluded that similar considerations should apply to the
application of credit for former jeopardy, observing that “these
personnel-related punishments are not applicable in civilian
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criminal trials . . . [and] we do not read Pearce as requiring
credit against punishments unique to military life where there
is no readily measurable equivalence between confinement and the
personnel related punishments of reduction and punitive
separation.” Id. at 348.
The accused in Rosendahl had served 120 days of confinement
as a result of the sentence in his original trial. After the
results were set aside on appeal, a rehearing was held, and the
accused was sentenced to a bad-conduct discharge and reduction
in grade. The sentence did not include confinement or
forfeitures. On appeal, the accused contended that his punitive
discharge should be set aside as a means of crediting his prior
confinement. He did not request credit in the form of modifying
his reduction in rank. We concluded that his 120 days’
confinement was “so different from a punitive discharge that we
do not find them to be equivalent in this case.” Id. (footnote
omitted). We also noted: “Whether a different result might be
warranted in a case involving lengthy confinement is a matter we
need not address until such a case is presented to us.” Id.
II. DISCUSSION
A.
In the present case, Appellant served 925 days of
confinement pursuant to the sentence the initial convening
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authority approved. This sentence was set aside on appeal. The
reassessed sentence, which did not include confinement,
consisted of a reduction in rank and forfeitures of pay. The
Court of Criminal Appeals concluded that he was entitled to
credit for the time served in confinement, and provided him with
credit against his approved sentence to forfeitures, but did not
provide credit against his reduction in rank. In his appeal to
this Court, Appellant notes that in Rosendahl we left open the
issue of whether such credit should be provided in a case
involving lengthy confinement, and that his confinement for 925
days constitutes such a case.
B.
As a preliminary matter, we note that the issue before us
involves former-jeopardy credit, not compensation for
confinement served as part of a sentence subsequently set aside.
As a matter of federal law, compensation generally is not
provided to persons who serve time in confinement as a result of
an initial trial that is set aside, even if a subsequent
proceeding results in acquittal, a sentence to no confinement,
or a sentence to confinement for a period shorter than the
initial sentence. Federal law provides only a very limited
opportunity for persons wrongly convicted in federal civilian
criminal trials to obtain damages or attorneys fees. See 28
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U.S.C. § 2513 (2000); Act of Nov. 26, 1997, Pub. L. No. 105-119,
§ 617, 111 Stat. 2440, 2519. Rigsbee v. United States, 204 F.2d
70 (D.C. Cir. 1953). The issue before us is whether credit is
available for the confinement served as a result of the initial
proceedings.
C.
Upon further consideration of this issue, we conclude that
reprimands, reductions in rank, and punitive separations are so
qualitatively different from other punishments that conversion
is not required as a matter of law. Although a punitive
separation potentially involves monetary consequences,
particularly with respect to veterans’ benefits, the primary
impact involves severance of military status. The issue of
whether a member of the armed forces should or should not
receive a punitive discharge reflects a highly individualized
judgment as to the nature of the offense as well as the person’s
past record and future potential, and does not lend itself to a
standard conversion formula.
Similar considerations apply with respect to reprimands,
which have no direct monetary consequences, and reductions in
rank. Although a change in rank has a clear monetary
consequence with respect to basic pay, an individual’s rank in
the military involves far more than money. The primary
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attribute of rank is one’s relative status with respect to his
or her fellow members of the armed forces. Many of the central
features of military life -- such as assignments, privileges,
responsibilities, and accountability -- are directly tied to
rank. Because the factors applicable to imposing a reduction in
rank reflect highly individualized judgments about military
status, it is not appropriate to impose a generally applicable
monetary formula for crediting periods of confinement or other
punishments against a sentence to reduction.
D.
The absence of reprimands, reductions, and separations from
the conversion formula in the MCM under R.C.M. 305(k) reflects
the traditional exclusion of such punishments from standard
conversion tables in prior editions of the Manual. For example,
both the 1951 and 1969 editions of the Manual, which permitted
the court-martial to substitute various punishments for the
punishments listed in the then-existing Table of Maximum
Punishments, did not include reprimands, reductions, and
discharges in the conversion authority. Para. 127c(2), Manual
for Courts-Martial, United States (1969 Rev.); para. 127c(2),
Manual for Courts-Martial, United States (1951).
We also have considered whether to mandate use of the
commutation power to provide former-jeopardy credit. Although a
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convening authority may commute a punishment such as a punitive
discharge into another form of punishment under Article 60(c),
UCMJ, 10 U.S.C. § 860(c)(2000), such action is a matter of
command prerogative. Commutation involves a reduction in
penalty rather than a substitution, and it is highly case-
specific. See Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990).
There is no formula guiding such action that could provide a
standard formula for former-jeopardy credit. The litigation
concerning use of the commutation power –- even when requested
by an accused -- underscores the difficulty of converting
reprimands, reductions, and discharges into other forms of
punishment. See, e.g., United States v. Carter, 45 M.J. 168,
170-71 (C.A.A.F. 1996); Waller, 30 M.J. at 143-45.
E.
A convening authority has broad authority to commute a
sentence into a different form so long as it involves a
reduction in penalty. Waller, 30 M.J. at 143. Although a
convening authority reviewing a case upon remand is not required
as a matter of law to convert a reprimand, reduction in grade,
or punitive separation to another form of punishment for
purposes of providing former-jeopardy credit, the convening
authority is empowered to do so as a matter of command
prerogative under Article 60(c). In the present case, the
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substitute convening authority reassessed the sentence to a
reduction to the grade of E-6 and forfeiture of $600.00 pay per
month for 4 months, and he further stated in his action that
appellant “will be credited with any portion of the punishment
served from 5 November 1998 to 30 May 2001 under the [prior]
sentence . . . .”
In the context of this case, the action of the convening
authority is ambiguous. It is not clear whether the convening
authority intended for the credit to be applied as a matter of
law against the forfeitures, or whether he also intended to
provide credit against the reduction as a matter of command
prerogative. It is also not clear whether the convening
authority fully considered the sentence reassessment
requirements of United States v. Sales, 22 M.J. 305 (C.M.A.
1986) and United States v. Reed, 33 M.J. 98 (C.M.A. 1991).
Accordingly, the record should be remanded to the convening
authority for clarification, both with respect to credit and
compliance with Sales and Reed. If the convening authority
intended to provide a credit against the reduction as a matter
of command prerogative, he shall set forth the specific credit.
Upon further review under Article 66(c), UCMJ, the Court of
Criminal Appeals shall ensure that the action of the convening
authority is in accord with this opinion and the sentence
reassessment requirements of Sales and Reed.
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III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals and the action of the convening authority are
set aside. The record is returned to the Judge Advocate General
of the Air Force for a remand to the convening authority for a
new post-trial action consistent with this opinion.
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