United States v. Rendon , 2003 CAAF LEXIS 439 ( 2003 )

UNITED STATES, Appellant
V.
David D. RENDON, Seaman (E-3)
U.S. Coast Guard, Appellee
No. 03-5001/CG
Crim. App. No. 1168
United States Court of Appeals for the Armed Forces
Argued March 11, 2003
Decided May 14, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Lieutenant Daniel J. Goettle (argued).
For Appellee: Commander Jeffrey C. Good (argued).
Military Judge: Mathew J. Glomb
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rendon, No. 03-5001/CG
Judge ERDMANN delivered the opinion of the Court.
Appellee, Seaman (E-3) David D. Rendon, was tried by special
court-martial at the United States Coast Guard Training Center,
Yorktown, Virginia. Pursuant to his pleas he was convicted of
attempting to distribute lysergic acid diethylamide (LSD),
attempting to use LSD, distribution of Ecstasy, five
specifications of using Ecstasy, two specifications of using LSD,
and possessing Ecstasy, in violation of Articles 80 and 112a,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
880 and 912a (2000), respectively.
Appellee was sentenced by a military judge to a bad-conduct
discharge, confinement for 60 days, forfeiture of “one-half pay
for six months,” and reduction to E-1.1 The promulgating order
erroneously reported the adjudged sentence as a bad-conduct
discharge, confinement for 60 days, “forfeiture of $521 pay per
month for six months,” and reduction to E-1. Without clarifying
this discrepancy between the actual adjudged sentence and the
incorrect version reflected on the promulgating order, the
convening authority purported to approve the sentence as
adjudged.
The Coast Guard Court of Criminal Appeals corrected any
error or confusion with respect to the forfeitures by affirming
only so much of the sentence as provided for a bad-conduct
discharge, confinement for 60 days, forfeiture of $521.00, and
1
The military judge erred in announcing the sentence. Rule for
Courts-Martial 1003(b)(2) requires that, unless total forfeiture
is adjudged, the amount of forfeitures adjudged be stated in
exact dollars.
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United States v. Rendon, No. 03-5001/CG
reduction to E-1. United States v. Rendon, 57 M.J. 795, 797
(C.G. Ct. Crim. App. 2002).
On December 26, 2002, the General Counsel of the Department
of Transportation certified the following issue pursuant to
Article 67(a)(2), UCMJ, 10 U.S.C. 867(a)(2) (2000):
DID THE COAST GUARD COURT OF CRIMINAL APPEALS
ERR WHEN IT SUA SPONTE HELD THAT THE MILITARY
JUDGE SHOULD HAVE GRANTED – IN ADDITION TO
THE MASON CREDIT AWARDED AT TRIAL – R.C.M.
305(k) CREDIT BASED ON A VIOLATION OF R.C.M.
305(i) FOR A PERIOD OF PRETRIAL RESTRICTION
TANTAMOUNT TO CONFINEMENT?
We hold that the Coast Guard Court of Criminal Appeals erred
by awarding confinement credit for a violation of Rule for
Courts-Martial 305(i) [hereinafter R.C.M.] where Appellee’s
restriction tantamount to confinement did not involve physical
restraint, the essential characteristic of confinement.
FACTS
Appellee made a motion for appropriate relief requesting
that the military judge award him “administrative credit” on
three grounds. First, Appellee contended that his restriction
was tantamount to confinement and that he should be given credit
pursuant to United States v. Mason, 19 M.J. 274 (C.M.A. 1985).
Second, Appellee contended that because the terms and conditions
of his restriction were tantamount to confinement, he was
entitled to credit under R.C.M. 305(k) for the Government’s
failure to follow the procedures set forth in R.C.M. 305 for
reviewing pretrial confinement. See United States v. Gregory, 21
M.J. 952 (A.C.M.R.), aff’d, 23 M.J. 246 (C.M.A. 1986)(summary
disposition). Finally, Appellee argued in the alternative that
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his restriction was pretrial punishment and he should receive
appropriate credit. Article 13, UCMJ, 10 U.S.C. § 813 (2000).
Appellee was given a written order of restriction on July
24, 2001. The letter restricted Appellee to “Training Center
Yorktown.” It also prohibited Appellee from engaging in certain
activities, barred him from certain facilities, and imposed
restrictions upon Appellee’s movements in addition to the
geographic limits of Training Center Yorktown. Appellee
testified on the motion for appropriate relief, providing some
additional description of the terms and conditions of his
restriction.
The military judge considered the written order and
Appellee’s testimony in adjudicating the motion for appropriate
relief. The military judge held that the period of time between
July 24 and August 31, 2001, constituted restriction tantamount
to confinement. The military judge found that the conditions
rising to the level of restriction tantamount to confinement
consisted of those listed in the letter of restriction and others
revealed in Appellee’s testimony. Those conditions were as
follows:
1. Appellee was restricted to Training Center Yorktown.
2. Appellee was permitted to eat at the Coast Guard Dining
Facility during regular meal hours.
3. Appellee was prohibited from wearing civilian clothing
other than gym attire while at the gym. His civilian
clothing was temporarily taken from him.
4. Appellee was required to move from his room to a
restriction room where he enjoyed less privacy.
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United States v. Rendon, No. 03-5001/CG
Appellee was not, however, physically limited to only
the barracks or the “restriction room.”
5. Appellee was permitted visitors only with prior
approval.
6. Appellee could not consume alcohol.
7. Appellee had reporting requirements after duty hours
and on weekends.
8. After 2200 hours, Appellee could not leave his room
unless there was an emergency.
9. Appellee was required to get permission to go to sick
call.
10. Appellee could not utilize the Mariner’s Mart, Liberty
Lounge, or the Cyber Café.
11. Personal property that Appellee brought to the
“restriction room” was inspected, including his
purchases from the Exchange.
12. Appellee’s telephone and pager were taken from him and
he was specifically prohibited from using them.
13. Appellee was told that he could not use Moral, Welfare,
and Recreation facilities.
14. Appellee was not required to be accompanied by an
escort when he left the barracks.
Despite finding that the restriction was tantamount to
confinement, the military judge noted that it was a “close call”
and that Appellee “was not fenced in and limited only to a
barracks.”
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United States v. Rendon, No. 03-5001/CG
On the other hand, the military judge declined to give
Appellee any additional credit for violation of R.C.M. 305. In
that regard, the military judge stated:
However, I do agree with the Government’s
argument, as opposed to what’s in their
brief, that it asks a lot of the command to
look far ahead into the future, guess what
the judge is going to find and then award
review. I don’t think it is reasonable for a
command to conclude that their actions are
reasonable and not amounting to tantamount to
confinement conditions, and yet turn around
and order review as you would for someone
confined who was a prisoner.
The military judge added, “It is a very close call, and for that
reason I think that the Government was not unreasonable in not
ordering review.” The only credit given by the military judge
was a credit for restriction tantamount to confinement pursuant
to Mason.
On appeal to the United States Coast Guard Court of Criminal
Appeals pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (2000),
Appellee did not challenge the military judge’s ruling concerning
the R.C.M. 305(k) credit. Nonetheless, the Coast Guard court sua
sponte found that the military judge erred by not granting the
requested credit. The Coast Guard court referenced our decision
in United States v. Chapa, 57 M.J. 140 (C.A.A.F. 2002), which
held that the issue of R.C.M. 305(k) credit is waived when an
accused fails to assert any violation of R.C.M. 305 at trial, and
noted that we “did not express any reservations about the
continuing validity of United States v. Gregory, . . . which
held that RCM 305 applies to restriction tantamount to
confinement.” Rendon, 57 M.J. at 796.
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United States v. Rendon, No. 03-5001/CG
The Coast Guard court determined that Gregory “remains good
law,” although it noted that in Chapa, Senior Judge Sullivan and
Judge Baker questioned whether R.C.M. 305 applied to restriction
tantamount to confinement. Id. at 797. The lower court also
expressed concern that restriction as a form of pretrial
restraint could be subject to abuse if R.C.M. 305 did not apply
“where restriction is truly tantamount to confinement.” Id.
Consequently, the Coast Guard court found that the military judge
erred when he declined to award Appellee additional credit for a
violation of R.C.M. 305. The lower court afforded Appellee
relief in the form of an additional 33 days of R.C.M. 305(k)
credit. Id.
DISCUSSION
The Government argues that our decision should be guided by
United States v. Perez, 45 M.J. 323 (C.A.A.F. 1996). According
to the Government, there is a continuum of restraint and until
restriction tantamount to confinement becomes “exactly like”
pretrial confinement, it remains restriction and is not
encompassed by the procedural or credit rules under R.C.M. 305.
Appellee, on the other hand, argues that an accused’s Fourth
Amendment interests are the same for restriction tantamount to
confinement and pretrial confinement. Therefore Appellee argues
that R.C.M. 305 should be triggered because the absence of
procedural safeguards in both instances is unreasonable. We do
not believe that the application of a label such as “restriction
tantamount to confinement” nor an analysis of varying factors
along a continuum reflect a correct application of R.C.M. 305.
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United States v. Rendon, No. 03-5001/CG
We review de novo whether Appellee is entitled to a pretrial
confinement credit. United States v. Smith, 56 M.J. 290
(C.A.A.F. 2002). The interpretation of a provision of the Manual
for Courts-Martial is a matter of law also to be reviewed de
novo. See United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002);
Manual for Courts-Martial, United States (2002 ed.)[hereinafter
MCM]. To interpret R.C.M. 305 and particularly whether R.C.M.
305(k) applies to restriction tantamount to confinement, we look
at “the plain language of the [MCM] and construe its provisions
in terms of its object and policy, as well as the provisions of
any related [rules], in order to ascertain the intent of [the
President]; if the [MCM] is unclear, we look next to the
[drafters’ analysis].” United States v. Falk, 50 M.J. 385, 390
(C.A.A.F. 1999). See also United States v. Phanphil, 57 M.J. 6
(C.A.A.F. 2002).
On its face, R.C.M. 305 applies to “pretrial confinement.”
R.C.M. 305(b) directs that an accused may only be “confined if
the requirements of this rule are met.” Conspicuously absent
from R.C.M. 305(b), or anywhere else in the R.C.M. 305 is any
reference to applying the procedural or credit provisions of the
rule to any other form of pretrial restraint. R.C.M. 305(k), the
credit provision upon which Appellee relies, is limited by
unambiguous language to “confinement served” after noncompliance
with R.C.M. 305(f), (h), (i), or (j). There is no support in
R.C.M. 305 for applying R.C.M. 305(k) to any lesser form of
restraint.
Further, the nature of pretrial confinement or “confinement
served” encompassed by the R.C.M. 305 is clear: “[p]retrial
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United States v. Rendon, No. 03-5001/CG
confinement is physical restraint, . . . , depriving a person of
freedom pending disposition of offenses.” R.C.M. 304(a)(4). See
R.C.M. 305(a). See also MCM Part IV, para. 19.(c).(5)(a). We
find no evidence that the President intended the procedural
protections or the credit provided in R.C.M. 305 to apply to
anything other than the physical restraint attendant to pretrial
confinement. Our conclusion is buttressed by the fact that the
President has not seen fit to expand the coverage of R.C.M. 305
despite the many years that restriction tantamount to confinement
has required a day-for-day credit under Mason.
It follows then that restriction tantamount to confinement
does not, per se, trigger, justify or require application of
R.C.M. 305. The rule is applicable to restriction tantamount to
confinement only when the conditions or circumstances attendant
to that restriction meet the definitional requirements for
“confinement.” In other words, the conditions or terms of the
restriction must constitute physical restraint depriving an
accused of his or her freedom. Anything less is outside the
scope of R.C.M. 305.
Appellee urges that an accused servicemember’s discipline
and training create a moral restraint attendant to restriction
tantamount to confinement, and that a stricter application of the
Fourth Amendment and R.C.M. 305 is warranted because of this
moral restraint. Although there are unique moral and
disciplinary considerations present in the military, we reject
the notion that those considerations require a unique application
of the Fourth Amendment or R.C.M. 305 to restriction tantamount
to confinement.
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United States v. Rendon, No. 03-5001/CG
In United States v. Rexroat, 38 M.J. 292 (C.M.A. 1993), we
examined Fourth Amendment considerations involving arrest and
pretrial detention in the civilian community, and the application
of Gerstein v. Pugh, 420 U.S. 103 (1975), and County of Riverside
v. McLaughlin, 500 U.S. 44 (1991), to apprehension, custody, and
pretrial confinement in the military. Rexroat, 38 M.J. at 294-
96. We noted that the factual similarity warranting application
of Gerstein and McLaughlin was physical restraint:
Transposing Gerstein and McLaughlin to
military practice requires some discussion of
terminology. Gerstein and McLaughlin both
involved arrests by civilian police and
pretrial detention in a jail house. PFC
Rexroat was apprehended and held in custody
until his commander could be notified and
could determine whether to place him in
pretrial confinement. Both “apprehension”
and “custody” are terms of art in military
law. See RCM 302(a)(1) (“Apprehension is the
taking of a person into custody.”).
“Custody” may include physical restraint,
albeit temporary. See United States v.
Ellsey, 16 USCMA 455, 458-59, 37 CMR 75, 78-
79 (1966). “All commissioned, warrant,
petty, and noncommissioned officers” may take
a person into custody pursuant to RCM
302(b)(2); but only a commissioned officer
may order an enlisted person into pretrial
restraint and only a commanding officer may
order a civilian or officer into pretrial
restraint. RCM 304(b). Pretrial confinement
is a form of pretrial restraint. RCM
304(a)(4). Thus, when Major Williams ordered
PFC Rexroat into pretrial confinement, he was
actually continuing the physical restraint of
PFC Rexroat in the Navy brig.
Id. at 295. Military apprehension, custody, and pretrial
confinement involve physical restraint. Absent some “military
necessity . . . requir[ing] a different rule,” Fourth Amendment
considerations apply to these forms of restraint. See Courtney
v. Williams, 1 M.J. 267, 270 (C.M.A. 1976). However, we find no
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basis upon which to extend the Fourth Amendment and other
procedural protections embodied in R.C.M. 305 to pretrial
restraint, including restriction tantamount to confinement, that
do not include physical restraint.
We note that we have summarily affirmed application of
R.C.M. 305 to restriction tantamount to confinement without
specifically finding physical restraint. Gregory, 23 M.J. at 246
(“it appears that the Court of Military Review correctly
concluded that restriction tantamount to confinement is a form of
confinement to which R.C.M. 305 . . . applies.”). See also
United States v. King, 58 M.J. 110, 115 n.4 (C.A.A.F. 2003). Cf.
United States v. Perez, 45 M.J. at 324 (suggesting that there may
be “cases where the conditions of restriction are exactly like
confinement” and that the requirement for a probable cause
hearing under R.C.M. 305 may apply). To the extent that these
decisions, or any others of this Court, suggest that R.C.M. 305
is per se applicable to restriction tantamount to confinement,
that suggestion is beyond the clear language of the rule. We now
clarify that R.C.M. 305 applies to restriction tantamount to
confinement only when the conditions and constraints of that
restriction constitute physical restraint, the essential
characteristic of confinement.
In this case, Appellee was not physically restrained. He
was geographically limited to Training Center Yorktown. He could
go to the gym each workday morning, to the Exchange at lunch on
Tuesdays, and to the mess hall for meals. No escort was required
when he went to these facilities. He had access to the lobby
and smoking area of the barracks. He performed the same duties
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United States v. Rendon, No. 03-5001/CG
at a warehouse that he had been performing prior to the
imposition of restriction, and he was not assigned any extra
duties or hard labor. While Appellee was geographically
restricted and faced the moral restraints attendant to the
limitations imposed upon him, it is clear that he was not
physically restrained.
DECISION
The certified issue is answered in the affirmative.
Accordingly, it is ordered and adjudged that the decision of the
United States Coast Guard Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge Advocate General of
the Coast Guard for remand to the Court of Criminal Appeals for
further review.2
2
Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-
296, § 1704(b)(2), 116 Stat. 2135 (2002)(codified as 6 U.S.C.
101-557 (2002)), Article 1(1) Uniform Code of Military Justice,
10 U.S.C. § 801(1) (2000), was amended by replacing “the General
Counsel of the Department of Transportation” with “an official
designated to serve as the Judge Advocate General of the Coast
Guard by the Secretary of Homeland Security.”
12