United States v. Harris

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Michael E. HARRIS, Staff Sergeant
United States Army, Appellant
No. 18-0364
Crim. App. No. 20170100
Argued April 10, 2019—May 16, 2019
Military Judge: Daniel G. Brookhart
For Appellant: Captain Patrick G. Hoffman (argued);
Colonel Elizabeth G. Marotta, Lieutenant Colonel Tiffany
D. Pond, Major Jack D. Einhorn, and Captain Benjamin J.
Wetherell (on brief).
For Appellee: Captain Natanyah Ganz (argued); Colonel
Steven P. Haight, Lieutenant Colonel Eric K. Stafford, and
Captain Jeremy Watford (on brief); Major Virginia H.
Tinsley.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON,
SPARKS, and MAGGS, joined.
_______________
Judge RYAN delivered the opinion of the Court. 1
A military judge sitting as a general court-martial
convicted Appellant, pursuant to his pleas, of one
specification of desertion in violation of Article 85, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 885 (2012), and
three specifications of possessing child pornography in
violation of Article 134, UCMJ, 10 U.S.C. § 934. He was
sentenced to confinement for five years, reduction to the
grade of E-1, forfeiture of all pay and allowances, and a bad-
1 We heard oral argument in this case at Fort Leavenworth,
located in Leavenworth, Kansas, as part of the Court’s Project
Outreach. This practice was developed as a public awareness pro-
gram to demonstrate the operation of a federal court of appeals
and the military justice system.
United States v. Harris, No. 18-0364/AR
Opinion of the Court
conduct discharge. The convening authority approved the
adjudged sentence.
The United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and sentence. We granted re-
view to determine:
Whether the Army court erroneously affirmed the
military judge’s denial of 291 days of Allen credit
for pretrial confinement Appellant served in a civil-
ian confinement facility awaiting disposition of
state offenses for which he was later court-
martialed. 2
The military judge’s factual finding that the 291-day pe-
riod at issue was confinement for a civilian offense for which
Appellant was arrested after the commission of the offenses
for which Appellant was court-martialed is supported by the
record. Consequently, Appellant is not entitled to adminis-
trative credit for those days. Dep’t of Defense, Instr. 1325.07,
Administration of Military Correctional Facilities and Clem-
ency and Parole Authority encl. 2, para. 3.c. (Mar. 11, 2013,
Incorporating Change 3, April 1, 2018) [hereinafter DoDI
1325.07]; see United States v. Harris, 66 M.J. 166, 168
(C.A.A.F. 2008) (“In reviewing pretrial confinement issues,
we defer to the military judge’s findings of fact . . . where
they are not clearly erroneous.”). The decision of the ACCA
is affirmed.
I. Facts and Procedural History
In March 2013, Appellant was arrested by civilian au-
thorities in Florida for possession of child pornography and
released on bond. In August 2013, the state of Florida
charged him with forty-four counts of possession of child
pornography, in violation of Fla. Stat. § 827.071(5)(a) (2012).
He remained free on bond awaiting trial for these charges.
Prior to trial by the state of Florida, Appellant fled to
Cambodia in an effort to avoid prosecution, where he re-
2 United States v. Allen, 17 M.J. 126 (C.M.A. 1984), was this
Court’s interpretation of Dep’t of Defense, Instr. 1325.4, Treat-
ment of Military Prisoners and Administration of Military Correc-
tion Facilities (Oct. 7, 1968) [hereinafter DoDI 1325.4]. DoDI
1325.4 was replaced by DoDI 1325.07.
2
United States v. Harris, No. 18-0364/AR
Opinion of the Court
mained from January 2014 through October 2014. As a re-
sult, he failed to appear at his January 28, 2014, pretrial
hearing in Florida, which is a felony under Florida law. Fla.
Stat. § 843.15(1)(a) (2012), Failure of defendant on bail to
appear.
Appellant later turned himself in to Cambodian authori-
ties and was transferred back to the United States. The
state of Florida rescinded his bond, placed him in pretrial
confinement in a civilian facility on November 6, 2014, and
charged him with failure to appear at a hearing while on
bail, a violation of Fla. Stat. § 843.15(1)(a).
On August 22, 2016, the Florida prosecutor elected not to
prosecute the forty-four counts of possession of child pornog-
raphy, due to the failure to secure a key witness. Instead,
Florida pursued a single count of failure to appear based on
Appellant’s absence at the pretrial hearing while on bond.
Appellant pled no contest in exchange for a sentence recom-
mendation from the prosecutor of 364 days of confinement,
with credit for time served. In accordance with the plea
agreement, Appellant was sentenced to 364 days confine-
ment with credit for time served. At this point Appellant had
spent 655 days in pretrial confinement awaiting the disposi-
tion of his civilian charges. Appellant was transferred to mil-
itary control and transported to Fort Meade, Maryland.
There, Appellant was charged with desertion and possession
of child pornography and placed in pretrial confinement pri-
or to his court-martial. Appellant pled guilty at his general
court-martial and was sentenced to five years confinement.
At sentencing, the defense asked for 482 days of adminis-
trative credit, which included 191 days for the time spent in
military pretrial confinement 3 and 291 days for the days
Appellant spent in civilian pretrial confinement in excess of
the 364 days to which he was ultimately sentenced by the
state of Florida.
3 The 191 days were calculated as follows: eight days spent
confined in Cambodia awaiting extradition to the United States;
nine days in civilian confinement in Florida awaiting transporta-
tion to Fort Meade; thirty-three days of restriction tantamount to
confinement after return to military control; and 141 days for time
spent in military pretrial confinement.
3
United States v. Harris, No. 18-0364/AR
Opinion of the Court
The military judge credited Appellant with 191 days for
his military pretrial confinement. In denying Appellant cred-
it for the 291 days spent in a civilian confinement facility
prior to his Florida criminal trial that were in excess of his
ultimate sentence, the military judge made the following
finding of fact:
[T]he evidence shows the entirety of the accused’s
time in pretrial confinement in Florida was dis-
charged as credit towards his offense [failure to ap-
pear] to which he pled “no contest” in Florida.
There wasn’t any indication or evidence that Flori-
da was holding the accused for the military, or
there was any coordination between the State of
Florida and the U.S. Army.
Instead, this request for confinement credit is
exactly the type covered by the DoD Instruction.
The accused was confined in a non-military facility
for the offense of failure to appear, for which he
was arrested well after the offenses for which this
court-martial shall impose sentence today.
In arriving at this conclusion, the military judge refer-
enced and found the following provision of DoDI 1325.07
dispositive:
[I]f a prisoner (accused) is confined in a non-
military facility for a charge or offense for which
the prisoner had been arrested after the commis-
sion of the offense for which the military sentence
was imposed, the prisoner (accused) shall receive
no credit for such time confined in the non-military
facility when calculating his or her sentence ad-
judged at court-martial.
Id. encl. 2, para. 3.c. (emphasis added).
The ACCA held that the military judge’s finding of fact
about the reason for the civilian pretrial confinement was
supported by the record and that a plain reading of DoDI
1325.07 thus precluded awarding Appellant 291 days credit
for that period of confinement. United States v. Harris, 78
M.J. 521, 525–26 (A. Ct. Crim. App. 2018). We agree.
4
United States v. Harris, No. 18-0364/AR
Opinion of the Court
II. Discussion
Before this Court, Appellant renews his argument that
the military judge erred in denying him pretrial confinement
credit for time spent in a civilian confinement facility. For
the reasons below, we disagree.
This Court reviews the question whether an appellant is
entitled to pretrial confinement credit de novo. United States
v. Smith, 56 M.J. 290, 292 (C.A.A.F. 2002). This Court will
not set aside a military judge’s findings of fact unless they
are clearly erroneous, but reviews the application of those
facts to the law de novo. Harris, 66 M.J. at 168. A military
judge’s factual findings are clearly erroneous when there is
no evidence in the record to support the finding or when,
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed. United States v.
Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018).
The military judge found as a matter of fact that Appel-
lant “was confined in a non-military facility for the offense of
failure to appear, for which he was arrested well after the
offenses [desertion and possession of child pornography] for
which this court-martial shall impose sentence today.”
While Dep’t of Defense, 1325.07–M, DoD Sentence Com-
putation Manual para. C2.4.2 (July 27, 2004, Incorporating
Change 3, Sept. 26, 2018), provides that “the judge will di-
rect credit for each day spent in pretrial confinement . . . for
crimes for which the prisoner was later convicted,” DoDI
1325.07 encl. 2, para. 3.c., specifically precludes the award of
pretrial confinement credit where a prisoner “is confined in
a non-military facility for a charge or offense for which the
prisoner had been arrested after the commission of the of-
fense for which the military sentence was imposed” (empha-
sis added).
Dispositive in this case, is the meaning of the DoDI’s
phrase: “for a charge or offense for which the prisoner had
been arrested after the commission of the offense for which
the military sentence was imposed,” particularly the
meaning of the word “for.” “When a term is not statutorily
defined, we accord [that term] its ordinary meaning.” United
5
United States v. Harris, No. 18-0364/AR
Opinion of the Court
States v. Hendrix, 77 M.J. 454, 457 (C.A.A.F. 2018). We
agree with the ACCA that the “correct meaning of [the word]
‘for’ is closest to ‘because of’ or ‘on account of.’ ” Harris, 78
M.J. at 525 (quoting Webster’s Third New International
Dictionary 886 (1981)). Accordingly, the military judge’s
factual finding that Appellant was placed in pretrial
confinement “for” the offense of failure to appear was not
clearly erroneous.
The record provides adequate support for this determina-
tion. See Criswell, 78 M.J. at 141. First, Appellant was only
placed in pretrial confinement after he fled to Cambodia
while out on bond and was charged with failure to appear
after his return to the United States. Second, Appellant was
not confined for the child pornography charges prior to his
flight to Cambodia. It seems perfectly accurate to say that
Appellant was placed in confinement because he fled the
country and failed to appear at his hearing and not because
he possessed child pornography. The record thus supports
the military judge’s finding that Appellant’s confinement in
Florida was “for” his failure to appear. 4 Having determined
that the military judge’s factual finding was not clearly er-
roneous, we find no error in his application of the law to that
factual finding. The denial of the 291 days of civilian pretrial
confinement credit aligns squarely with the plain language
of DoDI 1325.07 encl. 2, para. 3.c. Appellant’s failure to ap-
pear charge is a “charge or offense for which [he] had been
arrested after the commission of the offense for which the
military sentence was imposed” (possession of child pornog-
raphy). As a result of this separate offense, he was placed in
pretrial confinement. A straightforward application of DoDI
1325.07 requires that Appellant “shall receive no credit for
4 Appellant argues that the 291 days of his 655 days of pre-
trial confinement logically must have been “for” the child pornog-
raphy charge because he was sentenced to only 364 days of con-
finement for the failure to appear charge. This argument is with-
out merit. Appellant’s period of pretrial confinement for the
failure to appear charge simply exceeded his adjudged sentence
for that charge by 291 days. A period of pretrial confinement that
exceeds the adjudged sentence is not uncommon, nor is it relevant
to the instructions set forth in DoDI 1325.07.
6
United States v. Harris, No. 18-0364/AR
Opinion of the Court
such time confined in the non-military facility when calcu-
lating his or her sentence adjudged at court-martial.”
III. Judgment
The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.
7