United States v. Cartwright

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39191
________________________
UNITED STATES
Appellee
v.
Jeffary M. CARTWRIGHT
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 25 April 2018
________________________
Military Judge: Natalie D. Richardson.
Approved sentence: Dishonorable discharge, confinement for 4 years,
forfeiture of all pay and allowances, and a reprimand. Sentence ad-
judged 14 September 2016 by GCM convened at Beale Air Force Base,
California.
For Appellant: Major Allen S. Abrams, USAF; Major Isaac C. Kennen,
USAF.
For Appellee: Colonel Julie L. Pitvorec, USAF; Lieutenant Colonel Jo-
seph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF; Ma-
jor Meredith L. Steer, USAF; Captain Anne M. Delmare, USAF; Mary
Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Cartwright, No. ACM 39191
HARDING, Senior Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas, of three specifications of sexual as-
sault of a child and four specifications of sexual abuse of a child in violation of
Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. 1 The
adjudged and approved sentence consisted of a dishonorable discharge, con-
finement for four years, forfeiture of all pay and allowances, and a reprimand. 2
Appellant raises two assignments of error: (1) whether the court-martial
lacked personal jurisdiction over Appellant and (2) whether requiring Appel-
lant to report for duty in order to process his court-martial without paying him
amounted to illegal pretrial punishment. 3 Finding no error materially prejudi-
cial to a substantial right of Appellant, we affirm the findings and sentence.
I. BACKGROUND
This was Appellant’s second court-martial addressing sexual offenses with
children. On 2 July 2014, Appellant’s first general court-martial sentenced Ap-
pellant, then a Staff Sergeant, to a bad-conduct discharge, confinement for 24
months, forfeiture of all pay and allowances, and reduction to the grade of E-
1. 4 After serving 12 months of confinement from his first court-martial, Appel-
lant was placed on supervised release on 1 July 2015. The period of supervised
release was set to end on 25 June 2016.
Prior to Appellant’s supervised release, the Air Force Office of Special In-
vestigations opened a new investigation on 9 June 2015 into allegations of child
sexual assault and abuse committed by Appellant that later provided the basis
of the charges and convictions for this case. The report of investigation for
these offenses was completed on 1 October 2015.
On 9 February 2016, Appellant filed a motion with this court to withdraw
his first court-martial from appellate review. The motion was granted on 17
1The court-martial order erroneously lists Article 120, UCMJ, 10 U.S.C. § 920, as the
charge. We order promulgation of a new court-martial order listing Article 120b,
UCMJ, as the charge.
2 We note that the action, although it approved a reprimand, did not include reprimand
language.
3Both issues are raised by Appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
4Appellant was convicted, contrary to his pleas, of sexual abuse of a child and sexual
assault of a child.
2
United States v. Cartwright, No. ACM 39191
February 2016. Just two days later, on 19 February 2016, the original Charge
and Specifications for this case were preferred against Appellant. 5 On 25 June
2016, Appellant completed the period of supervised release and his sentence to
confinement from the first court-martial. Appellant’s second court-martial con-
vened and concluded on 14 September 2016.
II. DISCUSSION
A. Personal Jurisdiction
Appellant argues the Air Force lacked personal jurisdiction to try him at
his second court-martial because of his status between his two courts-martial.
We disagree.
We review questions of jurisdiction de novo. United States v. Kuemmerle,
67 M.J. 141, 143 (C.A.A.F. 2009) (citing United States v. Harmon, 63 M.J. 98,
101 (C.A.A.F. 2006)). We determine jurisdiction by looking at the status of the
accused as a member of the armed forces. Solorio v. United States, 483 U.S.
435, 439 (1987) (citations omitted). Jurisdiction under the UCMJ exists for
“[m]embers of a regular component of the armed forces.” United States v. Hart,
66 M.J. 273, 275 (C.A.A.F. 2008) (alteration in original) (quoting 10 U.S.C. §
802(a)(1)). “A member of an armed force may not be discharged or released
from active duty until his discharge certificate or certificate of release from
active duty, respectively, and his final pay or a substantial part of that pay,
are ready for delivery to him or his next of kin or legal representative.” 10
U.S.C. § 1168(a); see also Harmon, 63 M.J. at 101. In addition, Article 2(a)(7),
UCMJ, 10 U.S.C. § 802(a)(7), provides that “persons in custody of the armed
forces serving a sentence imposed by a court-martial” are also subject to the
UCMJ.
Without elaboration, Appellant argues his status during the time between
his two courts-martial supports his position that the Air Force lacked jurisdic-
tion to try him at his second court-martial. It is not clear if Appellant is inti-
mating that: (1) we should consider him discharged or released from active
duty at the instant his first case was withdrawn from appellate review; (2)
while on supervised release he was not subject to the UCMJ; or (3) once he
completed his sentence to confinement he was no longer subject to the UCMJ.
Regardless of which particular position Appellant suggests, we are not per-
suaded.
We note at the outset that Appellant, in his own declaration submitted to
this court, stated he did not receive a discharge certificate or final accounting
5 An Additional Charge was preferred on 10 March 2016.
3
United States v. Cartwright, No. ACM 39191
of pay. In addition, Appellant entered into a written stipulation of fact that was
admitted into evidence at his second court-martial and directly addressed his
military status between his two courts-martial.
[Appellant] is and has been, at all times relevant to these pro-
ceedings, on active duty in the United States Air Force, and as-
signed to the 9th Maintenance Squadron, Beale Air Force Base,
California. [Appellant] enlisted in the United States Air Force
on 15 August 2006 and has been on continuous active duty to the
present day. During the time of the offenses and at all times rel-
evant to this court-martial, [Appellant] was subject to the Uni-
form Code of Military Justice.
(Emphasis added).
The stipulation of fact, standing alone, provides a basis to conclude the Air
Force had personal jurisdiction to try Appellant because he was on continuous
active duty and subject to the UCMJ. Assuming arguendo there was no stipu-
lation as to facts that would establish personal jurisdiction over Appellant at
his second court-martial, a straightforward application of the law to other facts
demonstrated by the record yields the same conclusion. As Appellant states in
his declaration, he never received a discharge certificate or a final pay and
accounting. This is because Appellant was never discharged or released from
active duty.
For the majority of the time between his two courts-martial, Appellant was
either serving time in confinement or on supervised release. Appellant began
serving confinement on 2 July 2014 and remained there until he began super-
vised release on 1 July 2015. On the date of preferral of the second court-mar-
tial’s Charge and its Specifications, 19 February 2016, Appellant was still un-
der supervised release. The withdrawal of his first court-martial from appel-
late review two days prior did not somehow, by operation of law, automatically
effect Appellant’s release from active duty. Instead, Appellant’s status as of 19
February 2016, during his period of supervised release, qualified him as a “per-
son[ ] in custody of the armed forces serving a sentence imposed by a court-
martial” pursuant to Article 2(a)(7), UCMJ. Further, court-martial jurisdiction
attaches over a person when action with a view toward trial of that person is
taken, including the preferral of charges. Rule for Courts-Martial 202(c)(1).
Charges were preferred against Appellant on 19 February 2016. “Once court-
martial jurisdiction over a person attaches, such jurisdiction shall continue for
all purposes of trial, sentence, and punishment, notwithstanding the expira-
tion of that person’s term of service or other period in which that person was
subject to the code or trial by court-martial.” Id.
4
United States v. Cartwright, No. ACM 39191
We conclude that on 19 February 2016, the date of preferral, and through-
out the processing of his second court-martial, Appellant was and has been
subject to the UCMJ and thus the Air Force had personal jurisdiction to try
Appellant.
B. Illegal Pretrial Punishment
Appellant next argues that the requirement for him to “perform duties re-
lated to his court-martial without pay constituted unauthorized and therefore
unlawful punishment.” We disagree.
In his declaration, Appellant provides the following to support his claim of
unlawful pretrial punishment:
Leading up to my second court-martial, I was required to re-
spond to a technical sergeant from Beale Air Force Base by text
message and telephone. I was also required to report to Beale
Air Force Base in uniform multiple times, both for the hearings
and for receipt of paperwork related to my court-martial. I was
not paid for any of the time I was ordered to perform these du-
ties.
Appellant essentially claims the Government violated his Article 13,
UCMJ, 10 U.S.C. § 813, right to be free from illegal pretrial punishment when
he was not paid for duties related to his court-martial. Article 13 provides, “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 . . . .”
Article 13 prohibits two types of activities: (1) the intentional imposition of
punishment on an accused prior to trial, i.e., illegal pretrial punishment, and
(2) arrest or pretrial confinement conditions that are more rigorous than nec-
essary to ensure the accused's presence at trial, i.e., illegal pretrial confine-
ment. United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003) (citing United
States v. Fricke, 53 M.J. 149, 154 (C.A.A.F. 2000)).
Appellant’s argument focuses on the illegal pretrial punishment prong of
Article 13, UCMJ. A violation of this prong “entails a purpose or intent to pun-
ish an accused before guilt or innocence has been adjudicated.” United States
v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997). We apply this standard by ex-
amining the intent of detention officials or by examining whether the purposes
served by the restriction or condition are “reasonably related to a legitimate
governmental objective.” United States v. King, 61 M.J. 225, 227 (C.A.A.F.
2005) (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979); McCarthy, 47 M.J. at
165, 167). The question of whether Appellant is entitled to sentence credit for
an Article 13 violation is reviewed de novo. United States v. Mosby, 56 M.J.
309, 310 (C.A.A.F. 2002). Appellant bears the burden of proof to establish a
violation of Article 13. Id.
5
United States v. Cartwright, No. ACM 39191
Appellant’s lack of pay during the period leading up to his court-martial
was addressed during the sentencing phase of his court-martial when the mil-
itary judge asked counsel whether the personal data on the charge sheet was
correct. The charge sheet reflected pay of $1566.90. The trial counsel informed
the military judge that Appellant was not receiving any pay, but that the
amount correctly reflected the pay rate for Appellant’s rank and time in ser-
vice. Appellant’s trial defense counsel objected, stating that it was not “appro-
priate to reflect pay that [Appellant] is not receiving or entitled to.” The mili-
tary judge then confirmed that Appellant was receiving zero pay. The military
judge then asked whether Appellant had been punished in any way prior to
trial that would constitute illegal pretrial punishment under Article 13, UCMJ.
Appellant’s trial defense counsel replied, “No, your honor.” The military judge
then asked Appellant whether he agreed that he had not been punished in any
way prior to trial that would constitute illegal pretrial punishment. Appellant
replied, “Yes, your honor.”
Now on appeal, Appellant reverses his position and contends the lack of
pay constituted illegal pretrial punishment. Appellant, however, has failed to
present any evidence that any member of his command or other military offi-
cial withheld or denied his pay in order to punish him prior to his trial. 6 Ap-
pellant has failed to meet his burden of proof to establish a violation of Article
13, UCMJ.
III. CONCLUSION
The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
6 We note that until 25 June 2016, Appellant was under supervised release and still
serving his sentence to confinement. As such, Article 58b, UCMJ, 10 U.S.C. § 858b,
still applied and required mandatory forfeitures of Appellant’s pay up to that date. The
record, however, does not contain any information regarding Appellant’s duty status
from 26 June 2016 to 14 September 2016 relative to any pay he may have been due.
Nonetheless, as we conclude that Appellant failed to prove any intent to punish, any
remaining pay dispute Appellant may have with the Government is beyond our juris-
diction. See United States v. Buford, ___ M.J. ___, No. ACM 39087, 2017 CCA LEXIS
762 (A.F. Ct. Crim. App. 19 Dec. 2017).
6
United States v. Cartwright, No. ACM 39191
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
7