United States v. Regan

UNITED STATES, Appellee
v.
Tracy P. REGAN, Captain
U.S. Air Force, Appellant
No. 05-0280
Crim. App. No. 35419
United States Court of Appeals for the Armed Forces
Argued November 2, 2005
Decided January 27, 2006
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz (argued); Colonel
Carlos L. McDade and Captain Christopher S. Morgan (on brief).
For Appellee: Major Amy E. Hutchens (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer,
Major Steven R. Kaufman, and Major Matthew S. Ward (on brief).
Military Judge: Sharon A. Shaffer
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Regan, No. 05-0280/AF
Judge CRAWFORD delivered the opinion of the Court.
Pursuant to her pleas, Appellant was convicted of three
specifications of use of cocaine and one specification of
possession of cocaine in violation of Article 112a, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). The
convening authority approved the sentence of a dismissal and
nine months of confinement. The Court of Criminal Appeals
affirmed the findings and sentence. We granted review of the
following issue on June 15, 2005:
WHETHER APPELLANT SHOULD HAVE BEEN AWARDED ADDITIONAL
CONFINEMENT CREDIT FOR NONCOMPLIANCE WITH R.C.M. 305,
PURSUANT TO UNITED STATES v. RENDON, 58 M.J. 221(C.A.A.F. 2003).
We hold that the military judge did not err in declining to
award additional credit under Rule for Courts-Martial (R.C.M.)
305, Manual for Courts-Martial, United States (2005 ed.) (MCM).1
Prior to declining that credit, the military judge granted a
defense motion and gave Appellant credit for restriction
tantamount to confinement.
FACTS
After Appellant tested positive a third time for the use of
cocaine, the acting commander, Major Mary Nachreiner, initially
1
The current versions of all MCM provisions cited are identical
to the ones in effect at the time of Appellant’s court-martial,
unless otherwise indicated.
2
United States v. Regan, No. 05-0280/AF
discussed the test results with Colonel (Dr.) Morgan of Life
Skills and discussed the various options that were available.
At a later time, Major Nachreiner discussed the matter with the
commander who was on leave. It was after these discussions that
the acting commander decided to order Appellant into
confinement. Before placing Appellant into pretrial
confinement, the acting commander wanted to offer Appellant the
opportunity to get help for her drug problem. Major Nachreiner
told Appellant that she was going to order Appellant into
confinement, but if Appellant was willing, the commander would
send Appellant to an inpatient treatment program at St.
Elizabeth’s Hospital before proceeding with the pretrial
confinement. The military judge found that it was made clear to
Appellant that if she did not elect treatment, she would be
placed in pretrial confinement.
The following exchange occurred during the session pursuant
to Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), between the
military judge and Major Nachreiner regarding Appellant’s
election:
A: I know we offered the option of treatment, that
it would be solely her voluntary choice, that this
was voluntary admission. However, if she didn’t
choose a voluntary admission for treatment, then she
would go to pretrial confinement.
[MJ]: So there was an ultimatum, either go to
treatment or go to pretrial confinement. That’s what
I’m hearing.
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United States v. Regan, No. 05-0280/AF
A: It was still her option in a sense. You know, if
a person really wanted to treatment [sic], earnestly
wanted treatment, I would have thought it would have
been an obvious choice for treatment, which she did
choose.
[MJ]: I guess my question is --
A: We weren’t forcing her into treatment, but we did
say if you don’t choose treatment, the secondary
alternative is pretrial confinement. She could have
said, “No, I don’t want treatment. I’ll go to
confinement.” That would have been her option. You
know, if someone didn’t want treatment, they may not
have chosen that.
[MJ]: Well, if there was such a concern with her
positive [urinalysis] that was rather high on the
third one and your sole purpose was concern for her
health and well-being and getting treatment, then why
not just phrase treatment alone instead of the
ultimatum of either here or pretrial confinement?
It’s one or the other.
A: She’s an officer. We wanted to give her the
choice. We felt like, as you seem to indicate, it
seemed like an obvious choice. I would rather choose
a program to help myself than I would to go to
confinement directly. We didn’t force that choice on
her.
[MJ]: What it sounds like, though, is there was
going to be some sort of restriction, either
confining her in a hospital or confining her in a
jail.
The acting commander wanted to allow Appellant to choose
between drug treatment and pretrial confinement. Appellant made
her election to enter the treatment program. She commenced the
treatment program on “11 July 2002 and remained there until 2
August 2002 when she was transported to pretrial confinement.”
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United States v. Regan, No. 05-0280/AF
During the treatment program, Major Nachreiner received a call
that Appellant was not cooperating with her treatment group at
the treatment facility. The acting commander told the staff
member that Appellant was given a choice of “treatment or
pretrial confinement.” It was made clear to Appellant that if
she opted to quit the program, she would be placed in pretrial
confinement. There is no indication in the testimony or
evidence presented that the acting commander sent Appellant to
inpatient treatment to punish her. Although the commander had
decided to order Appellant into pretrial confinement, the acting
commander first wanted to help Appellant by providing her the
opportunity to help herself.
While in the program, Appellant was allowed to leave the
treatment facility with escorts. In addition to the escort
program, there were secure doors to the facility, and Appellant
was limited as to when she could go to the gift shop. Smoke
breaks were very limited. In the third week of treatment,
Appellant was allowed to take breaks with other individuals at
the facility. Appellant had supervised visits because of the
disclosure of her supplier:
On the weekend prior to her completion of the
program, the accused requested a pass for three hours
to have dinner with her daughter. However, based on
concerns regarding her behavior in group therapy, the
integrity of the program, the risk of relapse, and
[the] implication of her husband in drug use with
her, and also the risk of flight, this request was
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United States v. Regan, No. 05-0280/AF
denied. This was the only time the accused asked for
a pass.
Upon Appellant’s release from the treatment facility on August
2, 2002, she was placed in pretrial confinement.
The military judge found that:
[T]he accused was told that she had two options,
either inpatient treatment at St. Elizabeth’s Hospital
or pretrial confinement. Although the accused
apparently indicated that she wanted treatment and had
discussed it with her husband, the command made it
clear to her that, if she did not elect treatment, she
would be placed into pretrial confinement. She opted
for inpatient treatment.
. . . [A]t no time did the command discuss
involuntarily placing the accused into a treatment
facility, which would also, under our AFIs [Air Force
Instructions], require a notice and a hearing prior to
placement into [a] treatment facility. The options
were merely to voluntarily check yourself into the
hospital, or we will check you into pretrial
confinement.
The military judge noted that this case was “unique,” because
“this particular accused was given . . . . no choice. Inpatient
treatment or confinement is, in essence, no choice at all.”
In her essential findings, the military judge concluded
that, based on “the totality of the conditions imposed” and “the
facts and circumstances” of this case, the time Appellant was in
the treatment facility (twenty-one days) amounted to restriction
tantamount to confinement and determined that Appellant was
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United States v. Regan, No. 05-0280/AF
entitled to Mason2 credit. The military judge made this
conclusion based solely on the fact that Appellant was “not
given a choice” because while addressing the issue of whether
Appellant was entitled to additional credit for a violation of
R.C.M. 305 requirements, the military judge stated, “this is not
a scenario where the restriction, if you will, wasn’t tantamount
to confinement.” The military judge further stated on this
issue, “[i]f this was a different scenario, I wouldn’t even be
finding [that inpatient treatment] was restriction tantamount to
confinement.” The military judge concluded that the
restrictions placed on Appellant by the hospital were for
legitimate medical reasons and “are not the same restrictions
. . . the court envisioned that would necessitate a 305(k)
review.” The military judge then denied the defense motion for
additional credit under R.C.M. 305(k) for failure to comply with
the requirements of R.C.M. 305.
DISCUSSION
In United States v. Rendon, 58 M.J. 221 (C.A.A.F. 2003),
the Court held that R.C.M. 305 applies to “pretrial confinement”
and that rule applies to “restriction tantamount to confinement
only when the conditions and constraints of that restriction
2
United States v. Mason, 19 M.J. 274 (C.M.A. 1985) (day for day
credit is given for pretrial restriction equivalent to
confinement).
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constitute physical restraint, the essential characteristic of
confinement.” 58 M.J. at 224, 225. To come within the scope of
R.C.M. 305, then, “the conditions or terms of the restriction
must constitute physical restraint depriving an accused of his
or her freedom.” Id. at 224. “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.” Id.
(emphasis added). Thus, restriction tantamount to confinement
does not necessarily trigger the application of R.C.M. 305.
In this case, Appellant was not subject to physical
restraint incidental to pretrial confinement, but was treated as
a patient, not a prisoner. There was no evidence that she was
treated differently from other patients for a nonmedical
purpose, but that her restrictions were imposed for medical
reasons. This restriction could have been broken at any time.
Her treatment was voluntary and there was no evidence that
Appellant remained in the hospital against her will. In fact,
there was evidence she wanted to receive the treatment.
We hold that the military judge did not err in refusing to
grant additional credit pursuant to R.C.M. 305(k). The
conditions of Appellant’s inpatient stay at St. Elizabeth’s
Hospital did not amount to “physical restraint characteristic of
confinement,” thus entitling Appellant to credit because of a
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United States v. Regan, No. 05-0280/AF
violation of R.C.M. 305. The assistance one receives during an
inpatient drug treatment program is far different than the
physical restraint imposed when an individual is placed in
pretrial confinement. Clearly, as noted by the military judge,
the “parameters” set by the hospital are for “very legitimate
medical reasons, to prevent relapse or a person running out and
getting additional drugs.” Thus, there was no error in failing
to give additional credit under R.C.M. 305(k).
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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