United States v. Farrell

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700011
_________________________
UNITED STATES OF AMERICA
Appellee
v.
MICHAEL M. FARRELL
Lieutenant Colonel (O-5), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Eugene H. Robinson, Jr., USMC .
Convening Authority: Commanding General, III Marine
Expeditionary Force, Okinawa, Japan.
Staff Judge Advocate’s Recommend ation: Lieutenant Colonel C.B.
Shaw, USMC.
For Appellant: Commander Donald R. Ostrom, JAGC, USN.
For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant George R.
Lewis, JAGC, USN.
_________________________
Decided 14 June 2018
_________________________
Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
JONES, Judge:
At the request of the appellee, the court reconsidered our opinion issued
on 26 April 2018. That opinion is hereby withdrawn and the following
substituted therefor.
A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of attempted receipt of child pornography,
United States v. Farrell, No. 201700011
attempted sexual assault of a child, attempted sexual abuse of a child,
attempted adultery, conduct unbecoming an officer and a gentleman, and
fraternization, in violation of Articles 80, 133, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 880, 933, and 934 (2012). The military
judge sentenced the appellant to 60 months’ confinement, a reprimand, and a
dismissal. The convening authority (CA) approved the sentence as adjudged
but, pursuant to a pretrial agreement (PTA), suspended all confinement in
excess of 30 months and, except for the dismissal, ordered the remainder of
the sentence executed.
The appellant claims that his trial defense counsel (TDC) were ineffective
because they: (1) failed to seek his release from pretrial confinement and
move the court for confinement credit under RULE FOR COURTS-MARTIAL
(R.C.M.) 305(k), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.);
and (2) failed to raise an Article 10, UCMJ, speedy trial motion. The
appellant also asserts that he suffered pretrial punishment in violation of
Article 13, UCMJ.
Although not raised by the parties, we note that the court-martial order
contains an error, and we order corrective action in our decretal paragraph.
We conclude the findings and sentence are correct in law and fact and find no
error materially prejudicial to the appellant’s substantial rights. Arts. 59(a)
and 66(c), UCMJ.
I. BACKGROUND
In January 2015, in Okinawa, Japan, the appellant began using instant
messaging applications to exchange sexually charged text messages with
someone he thought was a 13-year-old girl. In reality, he was communicating
with an undercover law enforcement agent. On 30 June 2015, the appellant
drove to base housing to pick up the fictional girl and take her to an off-base
hotel room he had rented for a sexual encounter. He was apprehended and
interrogated by the Naval Criminal Investigative Service (NCIS). A search of
the appellant’s phone revealed that he had also been engaging in sexual
conversations and exchanging sexually explicit pictures with multiple male
enlisted personnel. NCIS later discovered he was also a suspect in another
undercover criminal investigation involving an underage girl.
The appellant was arraigned in October 2015, and trial was set for
January 2016. But in December 2015, the military judge granted the TDC’s
continuance motion, moving the trial to April 2016. Then, in January 2016,
the appellant filed a motion alleging the CA was an accuser and seeking
dismissal of the charges. On 10 March 2016, the military judge granted the
appellant’s accuser motion—finding that Brigadier General (BGen) King was
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a “type three” accuser in violation of Article 1(9), UCMJ—and dismissed the
charges without prejudice.1 Seven days after the ruling, the government
preferred charges alleging the same offenses and misconduct, and one
additional charge. The appellant eventually negotiated a PTA and pleaded
guilty in September 2016. The appellant remained in pretrial confinement
from the day of his apprehension until his guilty plea and sentencing.
II. DISCUSSION
A. Ineffective assistance of counsel
The appellant asserts that his TDC were ineffective because they: (1)
failed to seek his release from confinement and move the court for
confinement credit; and (2) failed to raise an Article 10, UCMJ, speedy trial
motion. We disagree.
We review claims of ineffective assistance of counsel de novo. United
States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant bears the
burden of showing: (1) that his counsel’s performance was deficient and (2)
that, but for his counsel’s deficient performance, there is a reasonable
probability that the result of the proceeding would have been different. Id.
(citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). Both prongs must
be satisfied for the appellant to clear this “high bar” and prevail on such a
claim. Id. at 371.
In a guilty plea context, however, the burden on the appellant is even
greater. This is because “[t]he second [Strickland] prong is modified to focus
on whether the ‘ineffective performance affected the outcome of the plea
process.’” United States v. Bradley, 71 M.J. 13, 16 (C.A.A.F. 2012) (quoting
Hill v. Lockhart, 474 U.S. 52, 59, (1985)). And “[i]t is not necessary to decide
1 Appellate Exhibit (AE) XXXIX. The defense motion “focused on BGen King’s
role in the Operational Planning Team for the Marine Corps SAPR [Sexual Assault
and Prevention Response] Campaign, his testimony to the Senate Armed Services
Committee and his unwillingness to resolve the case short of a contested trial.”
Appellant’s Brief of 31 May 2017 at 5-6. The appellant had been a main member of
BGen King’s staff, and just prior to the incident BGen King had written the appellant
a letter of recommendation to work at the White House. After the appellant was
apprehended, BGen King revoked his recommendation. AE XXXIV. The military
judge found that the personal relationship between BGen King and the appellant, as
well as BGen King’s significant role in the development of the SAPR Campaign (see
AE XXXVI), gave rise to an appearance of partiality. Based on this appearance, the
military judge concluded that BGen King was a “type-three” accuser—someone with
a personal (rather than an official) interest in the prosecution of the appellant—in
violation of Article 1(9), UCMJ. Lieutenant General Nicholson—the Commanding
General of III Marine Expeditionary Force, and superior in command to BGen King—
took over as CA. See Art 22(b), UCMJ.
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the issue of deficient performance when it is apparent that the alleged
deficiency has not caused prejudice.” Id. (citing Loving v. United States, 68
M.J. 1, 2 (C.A.A.F. 2009)). ‘“[T]o satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.”’ Id. (quoting Hill, 474 U.S. at 59) (alteration in original). “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome. That requires a substantial, not just conceivable, likelihood of a
different result.” Id. (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403,
(2011) (internal quotation marks omitted).
1. Failing to file motion for release from pretrial confinement and R.C.M.
305(k) credit
When the military judge dismissed the original charges against the
appellant on 10 March 2016, the appellant remained confined, and the
government did not go through anew the wickets of R.C.M. 305.2 There was
no new review of the appellant’s confinement by either the new CA or an
IRO. Additionally, the TDC never sought review of the appellant’s
confinement status with the military judge. As a result of these alleged
failures, the appellant now seeks 175 days of R.C.M. 305(k) credit.3
We find the appellant affirmatively waived any motions regarding these
issues. He successfully negotiated a PTA with the CA which contained the
2 R.C.M. 305 establishes both procedural requirements—and remedies for
noncompliance—when placing an accused in pretrial confinement. Procedurally, the
rule requires three things. First, within 72 hours of ordering a prisoner into pretrial
confinement, the commander must determine whether confinement should continue.
R.C.M. 305(h)(2)(A). Second, within 48 hours of entry into confinement, a neutral and
detached officer must review the adequacy of the probable cause to continue that
confinement. R.C.M. 305(i)(1). Third, within seven days of the imposition of
confinement, a neutral and detached officer must review both the probable cause
determination and the necessity for continued confinement. R.C.M. 305(i)(2). This
neutral and detached officer is referred to as the Initial Review Officer (IRO), and the
hearing—typically held at the confinement facility—is called the IRO hearing.
The remedy for failure to comply with these procedural rules “shall be an
administrative credit against the sentence adjudged for any confinement served as
the result of such noncompliance.” R.C.M. 305(k). Absent a showing of an abuse of
discretion or unusually harsh circumstances, such credit shall be computed at the
rate of 1-day credit for each day of confinement served as a result of such
noncompliance. Id. This credit is in addition to the day-for-day confinement credit an
accused receives. United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
3 “The 175-day calculation is from the order for dismissal on 10 March 2016 until
the Article 39(a)[, UCMJ,] session for plea and sentencing on 1 September 2016.”
Appellant’s Brief at 19.
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United States v. Farrell, No. 201700011
specially negotiated provision below that waived all waivable motions except
a motion filed under Article 13, UCMJ.
8(i). I agree to waive all waivable motions. This provision in
no way limits my right to raise any motion under Article 13,
[UCMJ], or any other motion that cannot be waived. I have not
been compelled to waive my right to due process, the right to
challenge the jurisdiction of the court-martial, the right to a
speedy trial, the right to raise the issue of unlawful command
influence, or any other motion that cannot be waived.4
The language here is unambiguous; it is clear exactly what the appellant
was waiving and what he was not. The appellant confirmed to the military
judge that he understood this section of the PTA and did not have any
questions.
MJ: Take a look at Paragraph 8. It lists your specially
negotiated provisions. Have you read each and every provision
and discussed them with your counsel?
ACC: Yes, Your Honor.
MJ: Are there any specially negotiated provisions that you
would like for me to explain or discuss with you in more detail?
ACC: No, Your Honor.5
The appellant cannot—and indeed does not—claim that motions to
release him from confinement or receive R.C.M. 305(k) credit are not
waivable. They are waivable. See United States v. Gladue, 67 M.J. 311, 314
(C.A.A.F. 2009) (a “waive all waivable motions” provision is a valid term in a
PTA which extinguishes the right to raise the motion on appeal); United
States v. Murphy, No. 201000262, 2010 CCA LEXIS 774, at *3-4 unpublished
op. (N-M. Ct. Crim. App. 23 Nov 2010) (per curiam). Here the appellant
waived all waivable motions with the exception of a motion under Article 13,
UCMJ, which he had raised and preserved at trial. The appellant offers no
evidence whatsoever to contradict his express waiver of these motions.
Assuming, arguendo, that the waiver is not dispositive and the appellant
may have been entitled to relief, this “does not by itself satisfy the prejudice
analysis in the guilty plea context. [The a]ppellant also must satisfy a
separate, objective inquiry—he must show that if he had been advised
properly, then it would have been rational for him not to plead guilty.”
4 AE XIII at 4-5.
5 Record at 263.
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Bradley, 71 M.J. at 17. (citing Padilla v. Kentucky, 130 S. Ct. 1473, 1485,
(2010)).
The government’s case against the appellant was formidable. He was
apprehended outside what he believed to be the home of an underage girl. He
had come to collect her for a sexual encounter in a nearby hotel room he had
just rented and staged. The government also possessed hundreds of
incriminating text messages and emails evidencing his guilt of a number of
offenses. The TDC and the appellant, in apparent recognition of the strength
of the government’s case and the appellant’s punitive exposure, single-
mindedly pursued a PTA. When the original CA refused to agree to a PTA,
they successfully filed a motion to replace him. The appellant was facing over
80 years’ confinement but negotiated a PTA limiting his confinement
exposure to 30 months. The appellant has made no showing that he was
improperly advised as to the propriety of his continued pretrial confinement
under RCM 305 or any credit therefor, or that he would have abandoned his
hard-fought PTA to preserve any related issue. Every day he spent in pretrial
confinement, receiving full pay and allowances, was credited against his
eventual sentence. In addition, the appellant has not carried his burden to
show that there is a substantial likelihood of a different result at trial. See id.
at 16.
The appellant has failed to show that his TDC were deficient in their
performance and, even if they were deficient, the deficiency did not result in
any prejudice. Therefore, his TDC were not ineffective for not raising these
motions.
2. Failing to file Article 10, UCMJ, speedy trial motion
The appellant also contends that his TDC were ineffective because they
did not file an Article 10, UCMJ, speedy trial motion. He contends that as a
result, he “spent 429 days in pretrial confinement while the government did
not diligently move his case to trial.”6
Unlike a motion for release from pretrial confinement or R.C.M. 305(K)
credit, the right to assert a speedy trial violation cannot be waived as a
provision of a PTA. See R.C.M. 705(c)(1)(B). A comprehensive timeline
showing all government activities from the moment the appellant was first
placed in pretrial confinement (PTC) to his trial is unavailable because a
speedy trial motion was never litigated below. We do not know all of the
actions the government counsel took while working on this case. However, to
analyze this assignment of error, we need not order a DuBay hearing for
further fact-finding. See United States v. DuBay, 37 C.M.R. 411 (C.M.A.
6 Appellant’s Brief at 20.
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1967). Rather, we find that we are able to assemble an adequate timeline
from the record to inform our decision. The record reflects no dispute about
the following dates.7
Date Event PTC
Day
30 Jun 2015 The appellant was apprehended and placed in PTC 1
by the initial CA, Brigadier General (BGen) King,
Commanding General, 3d Marine Logistics Group.8
The appellant granted consent to search his home
and hotel room.9
1 Jul 2015 Commanding General, Marine Corps Installations 2
Pacific granted a “Command Authorization for
Search and Seizure” for the appellant’s electronics.10
2 Jul 2015 The appellant’s electronics sent to Defense Computer 3
Forensic Laboratory (DCFL). Separate evidence sent
to NCIS Cyber offices.11
31 Jul 2015 Original charges preferred.12 32
7 Aug 2015 Forensic examination and extraction of iPhone by 39
investigator revealed new chats and pictures
involving several live persons residing in Okinawa,
including several junior enlisted service members.13
Investigators started trying to identify, locate, and
interview these persons.
13 Aug 2015 Preliminary Hearing Officer (PHO) appointed.14 45
21 Aug 2015 Interview of potential victim.15 53
7 See also Appellant’s Brief at 10-11; Appellee’s Brief of 2 Oct 2017 at 5-8.
8 Record at 191, 352; AE XXVI at 89.
9 AE XXVII at 4.
10 AE VI at 3.
11 Id.
12 AE XXXIX at 2.
13 AE III at 12, 19.
14 AE XXXIX at 2.
15 Appellee’s Brief at 6.
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4 Sep 2015 The appellant unconditionally waived his right to 67
original Preliminary Hearing (PH) under Article 32,
UCMJ.16
15 Sep 2015 Government received DCFL forensic analysis report. 78
NCIS case agent began review of extensive evidence,
which lasted until 28 October 2015.17
Defense signed Stipulation of Fact.18
17 Sep 2015 The appellant submitted first proposed PTA, offering 80
to plead guilty within five days.
BGen King rejected the PTA with no counteroffer.19
23 Sep 2015 Original charges referred.20 86
9 Oct 2015 The appellant was arraigned.21 The military judge 102
signed Trial Management Order setting agreed-upon
trial date of 25 January 2016.22
21 Oct 2015 Government gave defense MILITARY RULE OF 114
EVIDENCE (MIL. R. EVID.) 404(b), MANUAL FOR
COURTS-MARTIAL, UNITED STATES, (2012 ed.) notice
of intent to introduce certain prior acts at trial.23
23 Oct 2015 Government gave second MIL. R. EVID. 404(b) 116
notice.24
28 Oct 2015 iPad sent to NCIS Cyber Office in Hawaii for 121
analysis after local analysis failed.25 NCIS agents
sent approximately images found on the appellant’s
16 AE XXVI at 90.
17 AE VI.
18 AE XXVI at 47-77.
19 Id. at 78-88.
20 Record at 2; AE XXXIX at 3.
21 AE XX.
22 AE XXI.
23 AE XXVII at 6.
24 Id.
25 AE VI.
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devices to the National Center for Missing and
Exploited Children (NCMEC) for analysis.26
4 Nov 2015 Interview of additional potential victim.27 128
6 Nov 2015 Case Agent finished review of digital media received 130
from DCFL. (AE VI.) Additional images flagged for
possible child pornography and sent to NCMEC.28
4 Dec 2015 TDC requested continuance of trial date from 25 158
January 2016 to 11 April 2016.29
7 Dec 2015 Military judge granted TDC’s continuance request.30 161
31 Dec 2015 NCMEC reported no hits for known victims of child 185
pornography among images sent 28 October 2015.31
11 Jan 2016 TDC filed an accuser motion seeking disqualification 196
of BGen King as the CA and dismissal of the charges
without prejudice.32
22 Jan 2016 Government filed response to accuser motion.33 207
26 Jan 2016 Accuser motion litigated.34 211
4 Feb 2016 NCMEC reported no hits for known victims of child 220
pornography among additional images sent 6
November 2015.35
18 Feb 2016 NCIS Cyber Office in Hawaii reported that they were 234
unable to extract information from the appellant’s
iPad due to its operating system.36
26 AE VI at 3.
27 Appellee’s Brief at 6.
28 AE VI.
29 AE XXIII.
30 Id.
31 AE VI.
32 AE XXVI.
33 AE XXVII.
34 Appellee’s Brief at 6.
35 AE VI.
36 Id.
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10 Mar 2016 Military judge granted the appellant’s accuser 255
motion—finding that BGen King was a “type three”
accuser in violation of Article 1(9), UCMJ—and
dismissed the charges without prejudice.
17 Mar 2016 Government re-preferred charges with new CA.37 262
24 Mar 2016 Government preferred additional charge.38 269
5 Apr 2016 Start date for government delay for additional 281
investigation pursuant to CA’s retroactive grant of
excludable delay.39
22 Apr 2016 PHO appointed.40 298
27 Apr 2016 TDC requested delay of the PH from 3 to 18 May 303
2016.41
24 May 2016 Government requested backdated excludable delay 330
from 5 April 2016 to 27 May 2016 due to
investigation.42
27 May 2016 End date for excludable government delay for 333
investigation.43
28 May 2016 Excludable delay started on TDC’s request for 334
delay.44
3 Jun 2016 Excludable delay ended on TDC’s request for delay.45 340
6 Jun 2016 Defense submitted request for speedy trial.46 343
37 AE III at 1. The charges the new CA referred were identical to the original
charges that were dismissed.
38 Id. The additional charge that was not referred was an alleged violation of
Article 134, UCMJ, 10 U.S.C. § 934 (2012), Child Pornography. The PHO had found
no probable cause to refer the charge.
39 Appellee’s Brief at 7.
40 AE III at 12.
41 AE III at 12; Appellee’s Brief at 7.
42 Appellee’s Brief at 7.
43 Id.
44 Id.
45 Id.
46 Record at 11.
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9 Jun 2016 New CA granted the excludable delays 346
retroactively.47
14 Jun 2016 PH conducted.48 351
22 Jun 2016 PHO completed his report.49 359
1 Jul 2016 New CA referred all charges except the additional 368
charge.50
6 Jul 2016 Charges served on the appellant.51 373
12 Jul 2016 The appellant was arraigned and pled not guilty.52 379
Parties agreed to Trial Management Order setting
trial date of 12 September 2016.53
28 Jul 2016 Article 39(a) session held. Several motions litigated, 395
including suppression of evidence and granting of a
defense expert consultant.54
3 Aug 2016 PTA signed by all parties with agreement to go to 401
trial by 12 September 2016.55
1 Sep 2016 The appellant signed Stipulation of Fact and pled 429
guilty.56
7-8 Sep 2016 Sentencing hearing conducted.57 436-7
Military judge announced ruling on Article 13,
UCMJ, pretrial punishment motion and sentence.58
47 Appellee’s Brief at 7.
48 Record at 2.
49 Id.; AE III at 10.
50 AE III at 9.
51 Charge Sheet
52 Record at 10.
53 Id. at 8; AE I.
54 Record at 12-42; AE XXXVII and XXXVIII.
55 AE XIII.
56 Record at 45-48; Prosecution Exhibit 1.
57 Id. at 269-363.
58 Id. at 364-78.
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Article 10, UCMJ, commands that when a service member is placed in
pretrial confinement, “immediate steps shall be taken . . . to try him or to
dismiss the charges and release him.” In reviewing Article 10, UCMJ, claims,
courts do not require “constant motion, but reasonable diligence in bringing
the charges to trial.” United States v. Mizgala, 61 M.J. 122, 127 (C.A.A.F.
2005) (citations and internal quotation marks omitted). This “duty imposed
on the [g]overnment . . . does not terminate simply because the accused is
arraigned.” United States v. Cooper, 58 M.J. 54, 60 (C.A.A.F. 2003). Rather, it
extends to “at least the taking of evidence.” Id. Finally, we look at four factors
in examining the circumstances surrounding an alleged Article 10, UCMJ,
violation: “(1) the length of the delay; (2) the reasons for the delay; (3)
whether the appellant made a demand for a speedy trial; and (4) prejudice to
the appellant.” Mizgala, 61 M.J. at 129 (citing Barker v. Wingo, 407 U.S. 514,
530 (1972)).
Given this legal framework, we now analyze the Barker factors. In doing
so, we recognize that “none of the four factors has any talismanic power[;]”
rather, “we must . . . weigh all the factors collectively before deciding whether
a defendant’s right to a speedy trial has been violated.” United States v.
Wilson, 72 M.J. 347, 354-55 (C.A.A.F. 2013) (citations and internal quotation
marks omitted).
a. Length of the delay
The length of delay constitutes a triggering mechanism under Article 10,
UCMJ. The government contends that while 429 days “may appear at first
glance facially unreasonable, facial unreasonableness requires consideration
of the case’s circumstances.”59 While we agree with this general proposition,
we believe the length of the delay in this case merits a full Barker analysis.
See United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993) (holding that
an Article 10, UCMJ, speedy-trial motion could “succeed where a period
under 90—or 120—days is involved.”); see also United States v. Thompson, 68
M.J. 308, 312 (C.A.A.F. 2010) (145-day delay triggered the full Barker
analysis); United States v. Cossio, 64 M.J. 254, 257 (C.A.A.F. 2007) (117
days); Mizgala, 61 M.J. at 128-29 (117 days). This factor weighs in the
appellant’s favor.
b. Reasons for the delay
The delays in this trial are largely attributable to the ongoing forensic
analysis of evidence as it was discovered, the TDC waiting three-and-one-half
months to file their dismissal motion, and the time needed to renew the
pretrial process.
59 Government Brief at 20 (citing United States v. Schuber, 70 M.J. 181, 188
(C.A.A.F. 2011).
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Our review of the record shows that the government acted with
reasonable diligence by thoroughly investigating the appellant’s extensive
misconduct while moving the case to trial.60 We disagree with the appellant’s
assertion that when he was apprehended the government’s evidence was
complete and their case substantially perfected. The evidence supporting a
number of the offenses of which the appellant was convicted was only
discovered during the government’s continuing investigative actions after the
appellant was apprehended. The government always “has the right (if not the
obligation) to thoroughly investigate a case before proceeding to trial.” Cossio,
64 M.J. at 258. Two days after the appellant was apprehended, the
government sent his seized electronics to DCFL and to the NCIS Cyber
offices for analysis. In September 2015, the DCFL report was received, and
the NCIS case agent began reviewing the evidence. This revealed that the
appellant’s sexual chatting was prolific and resulted in the discovery of many
new chats, chat partners, and pictures which had to be investigated and
analyzed. Several of these people had to be identified, found, and interviewed.
The investigation also disclosed that the appellant was a suspect in a
separate undercover investigation similar to the one that resulted in his
court-martial.
By November 2015, NCIS’s comprehensive review had flagged 28 possible
images requiring further investigation and analysis, and ultimately two
different groups of images were sent for additional analysis and review.
Additionally, when the government was unable to access the appellant’s iPad
locally, they sent it to the NCIS Cyber Office in Hawaii for examination. By
February 2016, they learned that they were unable to extract any data from
the iPad. During this entire time, the government continued to comb through
the evidence and identify and interview witnesses to several fraternization
charges.
Another reason for the delay was that the appellant waited more than
three months to file his successful dismissal motion, which significantly
delayed the processing of the case. During the initial trial proceedings, on 9
October 2015—some three months after he was placed in confinement—the
appellant agreed to an original trial date of 25 January 2016, more than
three months away. Then, two weeks before the trial was scheduled to begin,
the TDC filed their motion to dismiss. Notably, this is three and one-half
months after their initial PTA was rejected by BGen King in September 2015
and more than six months after the appellant was confined. There is nothing
in the record to indicate that the TDC needed this time to garner new
60 See id. at 5-8 for a summary of the events.
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evidence or information for their motion. The motion hearing was held in
February, and the military judge granted the motion on 10 March 2016.
Finally, it took the government time to go through the pretrial process
anew. In response to the ruling, the government initially moved quickly to re-
prefer the charges on 17 March 2016 and prefer an additional charge a week
later. On 22 April 2016, the new CA signed the Article 32, UCMJ,
preliminary hearing convening order, ordering the hearing to take place not
later than 3 May 2016. The record is silent on why the government took six
weeks from preferral of charges on 10 March 2016 until the PHO was
appointed. Even considering it may have taken some time for a new CA to
identify a PHO who both outranked the appellant and was not conflicted, six
weeks seems to be an excessive amount of time to accomplish this task. This
particular delay cuts against the government, and we will consider this when
we determine if the delay was unreasonable.
The hearing was held on 14 June 2016, after both sides had requested
delay—the government to seek further evidence, and the defense to try to
broker a PTA. On 1 July 2016, after receiving the 22 June 2016 PHO’s report
and the 30 June 2016 SJA’s recommendation, the new CA referred the
charges. Notably, when the appellant was arraigned on 12 July 2016, he
agreed to a trial date more than two months out. He also never filed an
Article 10, UCMJ, speedy trial motion despite having demanded a speedy
trial on 6 June 2016. When we consider that the timeframe in the appellant’s
case comprised two discrete trial processes—because of the appellant’s
successful dismissal motion—the reasons for the delay are more easily
explained. To be clear, the appellant’s motion to dismiss does not waive or
even weaken his right to a speedy trial. But when the accuser motion was
successful, the entire trial process had to be restarted, which took significant
time.
To be sure, the timeline in this case reveals unexplained government
delays between case milestones—particularly between 17 March 2016 and 22
April 2016 and between 18 May 2016 and 14 June 2016. We do not know with
certainty what actions different government actors took during those
timeframes because a speedy trial motion was never litigated at trial.
Regardless, we do not find that the prosecution against the appellant
significantly languished. The government is not required to show “constant
motion, but reasonable diligence in bringing the charges to trial.” Mizgala, 61
M.J. at 127. And there is no Article 10, UCMJ, violation where the record
“does not establish [g]overnment indifference or substantial inactivity over
the full course of the pretrial proceeding[.]” Thompson, 68 M.J. at 314
(emphasis added).
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Given the extensive forensic investigation conducted, the appellant’s
successful dismissal motion which started the trial process anew, and the
appellant’s continuance requests and acquiescence to trial milestones, we
find that the delay in this case was not unreasonable. Although we find that
the government’s diligence in getting the appellant to trial was not
exemplary, we do conclude that it was at least reasonable given the
particular facts of this case. Therefore, the reasons for the delay weigh
slightly in the government’s favor.
c. Demand for speedy trial
In Barker, the Supreme Court noted that “[t]he more serious the
deprivation, the more likely a defendant is to complain. The defendant’s
assertion of his speedy trial right, then, is entitled to strong evidentiary
weight in determining whether the defendant is being deprived of the right.”
Barker, 407 U.S. at 531-32. However, we have also long held that “the right
to a speedy trial is a shield, not a sword.” United States v. Miller, 66 M.J. 571,
575 (N-M. Ct. Crim. App. 2008) (citation and internal quotation marks
omitted). Here, the appellant appears to have used his speedy trial request as
a sword. It is significant that: (1) the appellant did not demand speedy trial
until 6 June 2016, more than 11 months after he was placed in pretrial
confinement; (2) he never filed an Article 10, UCMJ speedy trial motion; and
(3) when arraigned a month after his speedy trial request, the appellant
agreed to a trial date that was still two months away.
The appellant also sought continuances while he repeatedly attempted to
negotiate a PTA. Most noteworthy, on 4 December 2015—almost two months
after the appellant was originally arraigned—the TDC requested a 77-day
continuance of the trial from 25 January 2016 to 11 April 2016. Additionally,
the TDC requested a 15-day delay to the start of the Article 32, UCMJ,
preliminary hearing which was scheduled for 3 May 2016. All of these actions
are consistent with efforts to secure a PTA and avoid a contested trial. This is
understandable given the overwhelming evidence against the appellant,
however, he cannot petition for and agree to delay and then demand
dismissal for that same delay.61
61 See United States v. King, 30 M.J. 59, 66 (C.M.A. 1990) (holding that an
accused “cannot be responsible for or agreeable to delay and then turn around and
demand dismissal for that same delay”); United States v. Wiley, No. 201600120, 2017
CCA LEXIS 538, at *14-15 unpublished op. (N-M. Ct. Crim. App. 10 Aug 2017)
(finding that the delay between arraignment and trial which was agreed upon by the
trial defense counsel was presumptively reasonable); see also Cooper, 58 M.J. at 60
(explaining that “by the time an accused is arraigned, a change in the speedy-trial
landscape has taken place. This is because after arraignment, the power of the
military judge to process the case increases, and the power of the [Government] to
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These particular facts are more demonstrative of an appellant that is
trying to negotiate a favorable PTA with the CA rather than an appellant
that is demanding his day in court. Yet, regardless of the appellant’s
intentions, he asserted his right to a speedy trial, therefore this factor
ultimately weighs slightly in his favor.
d. Prejudice to the appellant
“Prejudice . . . should be assessed in the light of the interests of
defendants which the speedy trial right was designed to protect.” Mizgala, 61
M.J. at 129 (citation and internal quotation marks omitted). We examine the
question of prejudice in light of three important interests the Supreme Court
identified in Barker: (1) to prevent oppressive pretrial incarceration; (2) to
minimize anxiety and concern; and (3) to limit the possibility that the defense
will be impaired. Barker, 407 U.S. at 532.
First, the appellant filed an Article 13, UCMJ, motion at trial, claiming
that he suffered pretrial incarceration so oppressive it constituted
punishment. The military judge found that the conditions of the appellant’s
pretrial confinement did not amount to pretrial punishment. In Section C,
infra, we find the military judge did not abuse his discretion and affirm his
ruling. Accordingly, we find that the appellant did not experience oppressive
pretrial incarceration.
Second, the appellant did suffer measureable anxiety and concern. A
mental health nurse practitioner who treated the appellant “believe[d] that
his depression and anxiety symptoms were directly related to incarcerations,
[sic] the legal stressors that he was going through.”62 But it is certainly
reasonable that anyone in the appellant’s position, facing such serious
charges, would be anxious and depressed. In and of itself, pretrial
confinement “necessarily involves some anxiety and stress[.]” Mizgala, 61
M.J. at 129. The prejudice analysis under Barker requires that the appellant
suffer “some degree of particularized anxiety and concern greater than
normal anxiety and concern associated with pretrial confinement.” Wilson, 72
M.J. at 354 (citation and internal quotations omitted). Although a close call,
the nurse practitioner’s diagnosis sways us to find that the appellant showed
some degree of particularized anxiety and concern greater than normal. This
factor weighs in favor of the appellant.
Third, the appellant has failed to present any evidence showing that the
delay impaired his defense. Of the three parts of the prejudice analysis, this
affect the case decreases.”) (alteration in original) (citation and internal quotation
marks omitted).
62 Record at 60.
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last part—hindering the defense—is the most heavily weighted “because the
inability of a defendant adequately to prepare his case skews the fairness of
the entire system.” United States v. Johnson, 17 M.J. 255, 259 (C.M.A. 1984)
(quoting Barker, 407 U.S. at 532) (internal quotations omitted). Here, the
appellant focuses his entire argument on allegations of pretrial punishment,63
not on how any delay resulted in an impairment of his ability to defend
himself. As in Mizgala, “there is no indication that [the appellant’s]
preparation for trial, defense evidence, trial strategy, or ability to present
witnesses, on [either] the merits [or] sentencing, were compromised by the
processing time in this case.” Mizgala, 61 M.J. at 129.
In sum, although the appellant suffered some anxiety and concern beyond
the norm, he was not subject to oppressive pretrial incarceration and his
defense was not impaired. We conclude that the prejudice factor weighs in
favor of the government.
e. Weighing the four Barker factors
We found two factors in favor of the appellant: the length of time getting
him to trial and his request for a speedy trial. In other words, there was a
significant length of time sufficient to trigger further speedy trial analysis,
and the appellant made a pro forma request for speedy trial almost a year
after he was placed in PTC. But these factors are substantially outweighed by
those favoring the government: the reasons for the delay and the lack of
prejudice to the appellant. We find the reasons for the delay largely
explainable and any gaps in governmental action not overly excessive,
especially in light of the government having to restart the entire trial process.
Most importantly, the appellant can point to no meaningful prejudice he
suffered as a result of any delay. He ultimately secured a favorable PTA—
reducing his confinement exposure from over 80 years to 30 months—which
appeared to be his overriding goal. He experienced anxiety and depression,
but he did not suffer oppressive pretrial incarceration. Lastly—and most
significantly—his ability to mount a defense was not impaired. After
carefully weighing the four Barker factors, we conclude that the appellant
was not denied his right to a speedy trial under Article 10, UCMJ.
f. No ineffective assistance of counsel
The appellant has failed to show that his TDC were deficient by failing to
raise an Article 10, UCMJ, motion. And, even if they were deficient in failing
to raise the motion, that deficiency resulted in no prejudice to him.
63 Appellant’s Brief at 18.
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United States v. Farrell, No. 201700011
First, the TDC were not deficient in their performance. They persistently
and zealously negotiated for a PTA for their client. Their decision to request
speedy trial but not file an Article 10, UCMJ, motion suggests they sought
leverage for a PTA, not a speedy trial. Recognizing the evidence against the
appellant—including the appellant’s confession and admissions to NCIS—
was particularly strong and likely to result in significant confinement, we
find nothing unreasonable about the TDC’s tactical decision to permit
confinement credit to accrue—while the appellant enjoyed full pay and
allowances—rather than file and argue a weak speedy trial motion. See
United States v. Dubouchet, 63 M.J. 586, 589 (N-M. Ct. Crim. App. 2006)
(rejecting “the appellant’s assertion that his counsel’s performance was
ineffective” after noting that the appellant failed to “address any of the
tactical reasons why the defense counsel would not raise a speedy trial
issue”); United States v. Patterson, No. 201600189, 2017 CCA LEXIS 437, at
*17, unpublished op. (N-M. Ct. Crim. App. 30 Jun 2017) (noting the appellant
“failed to demonstrate how prioritizing confinement credit over a weak
speedy trial claim and allowing additional days of potential confinement
credit to accrue constitutes deficient performance.” (citation omitted)). The
Barker court noted, “[d]elay is not an uncommon defense tactic.” 407 U.S. at
521. Indeed, delay often inures to the accused’s advantage.
Second, the appellant suffered no prejudice. In order to satisfy the second
prong of Strickland and demonstrate prejudice based on a failure to raise the
speedy trial motion, “the appellant must show that there is a reasonable
probability that such [a] motion would have been meritorious.” Dubouchet, 63
M.J. at 589 (citations and internal quotation marks omitted). For the reasons
set forth above, we conclude that there is no reasonable “probability sufficient
to undermine confidence in the outcome” that the appellant would have
prevailed on this motion. Strickland, 466 U.S. at 694. In sum, there was no
denial “of a fair trial,” resulting in “a trial whose result is unreliable.” United
States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001) (citation and internal
quotation marks omitted).
B. Article 13, UCMJ, unlawful pretrial punishment
The appellant contends that the government violated the Article 13,
UCMJ, prohibition against unlawful pretrial punishment when it denied him
adequate medical and mental health care, imposed overly harsh conditions on
him, and violated his confidentiality with his attorneys.
“The burden is on [the] appellant to establish entitlement to additional
sentence credit because of a violation of Article 13[, UCMJ].” United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citing R.C.M. 905(c)(2)). Whether an
appellant is entitled to relief for a violation of Article 13, UCMJ, is a mixed
question of law and fact. Id. (citing United States v. Smith, 53 M.J. 168, 170
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United States v. Farrell, No. 201700011
(C.A.A.F. 2000); United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997))
(additional citation omitted). “We will not overturn a military judge’s findings
of fact, including a finding of no intent to punish, unless they are clearly
erroneous. . . . We will review de novo the ultimate question whether [this]
appellant is entitled to credit for a violation of Article 13[, UCMJ].” Id. (citing
Smith, 53 M.J. at 170).
Article 13, UCMJ, states that “[n]o person, while being held for trial, may
be subjected to punishment or penalty other than arrest or confinement upon
the charges pending against him, nor shall the arrest or confinement imposed
upon him be any more rigorous than the circumstances required to insure his
presence[.]” In other words, Article 13, UCMJ, prohibits two things: (1)
pretrial punishment and (2) PTC under unduly rigorous circumstances.
1. No pretrial punishment
Article 13, UCMJ, prohibits pretrial punishment.
[T]he question of whether particular conditions amount to
punishment before trial is a matter of intent, which is
determined by examining the purposes served by the
restriction or condition, and whether such purposes are
“reasonably related to a legitimate governmental objective.”
[I]n the absence of a showing of intent to punish, a court must
look to see if a particular restriction or condition which may on
its face appear to be punishment, is instead but an incident of a
legitimate nonpunitive governmental objective.
Howell v. United States, 75 M.J. 386, 393 (C.A.A.F. 2016). We will
examine the military judge’s findings.
The appellant did not provide any evidence that BGen King intended to
punish him. The TDC merely posited that because BGen King had been
labeled an accuser by the military judge—and thus removed as the CA—
there was evidence of intent to punish the appellant. But the military judge
was not persuaded, concluding that “the prior disqualification of the former
[CA] does not evince an intent on the part of the government to punish the
[appellant] . . . . The disqualification resulted from the appearance of bias . . .
[which] does not equate to an intent to punish the [appellant].”64
Additionally, the military judge found that the appellant had not established
that any other government actor—especially any of the brig personnel—
intended to punish the appellant. Finally, the military judge concluded that
“[a]lthough the [appellant] testified about the unpleasantness of his
64 Record at 372.
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conditions while in confinement, there was no evidence presented that the
conduct of government officials intended to punish him.”65
There being no intent to punish, we next “look to see if a particular
restriction or condition, which may on its face appear to be punishment, is
instead but an incident of a legitimate nonpunitive governmental objective.”
Howell, 75 M.J. at 393. Here, the appellant failed to identify a “particular
restriction or condition” of his pretrial confinement that did not serve a
legitimate government purpose. The military judge also made specific
findings of fact that the medical care, physical training, and searches of the
appellant’s cell were all legitimate government actions.66
The military judge’s findings of fact are supported by the record and are
not clearly erroneous. Nor are his conclusions of law incorrect. We turn next
to focus with more particularity on the circumstances of the appellant’s
pretrial confinement.
2. No unduly rigorous circumstances of confinement
Article 13, UCMJ, prohibits the imposition of unduly rigorous
circumstances during PTC. “Conditions that are sufficiently egregious may
give rise to a permissive inference that an accused is being punished, or the
conditions may be so excessive as to constitute punishment.” United States v.
Harris, 66 M.J. 166, 168 (C.A.A.F. 2008) (citations and internal quotation
marks omitted). We will examine the military judge’s findings with regard to
the three types of alleged punishment the appellant has challenged again on
appeal: (a) denial of adequate medical and mental health care, (b) overly
harsh conditions at the brig, and (c) violation of his confidentiality with his
attorneys.
a. Denial of adequate medical and mental health care
The appellant’s principal complaint regarding his medical care was that
he had been denied his Continuous Positive Airway Pressure (CPAP)
machine for the first year of his pretrial confinement. As a result, he claimed
he woke up every few hours at night, causing him to be exhausted during his
daily routine. The military judge found that the appellant had informed brig
personnel, during his July 2015 in-processing, that he had been prescribed
the CPAP machine. However, in spite of regular appointments with a brig
counselor over many months, the appellant only mentioned wanting his
CPAP machine in January 2016. When he finally did discuss it, he told his
counselor that the medical staff was aware of the issue, and he denied any
65 Id. at 374.
66 Id. at 368, 370.
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further medical concerns. But the brig medical staff did not do anything to
further assist the appellant in securing the CPAP machine.
In February 2016, during another weekly interview, the appellant
complained about delays in receiving medications, and that he still did not
have his CPAP machine. He again denied any medical distress. His counselor
told him to file a chit with medical so they would assist him in getting the
machine. No action was taken to assist the appellant in receiving the
machine until the issue was finally raised by the appellant to the
commanding officer (CO) of the brig around June of 2016. The CO
immediately spoke with the independent duty corpsman (IDC) to try to
resolve the problem. The IDC asked the appellant’s family about the machine
and was told it was broken. The family was then asked to bring the machine
to the brig so it could be repaired. After some delay, the family finally
brought it in, it was repaired, and special accommodations were made to
ensure the appellant had access to electricity and batteries for the machine.67
The military judge acknowledged that the strongest claim the appellant
had regarding unnecessarily harsh conditions at the brig was not having his
CPAP machine for about a year. But he found even this did not amount to
unnecessarily harsh conditions.
While this negligent failure on the part of brig personnel to
ensure that the [appellant’s] CPAP machine was obtained,
repaired, and delivered to him apparently was not resolved for
a one-year period, it did not rise to the level of being so
egregious or so excessive as to constitute an unnecessarily
harsh condition as the defense makes of it. Indeed, the only
documentation provided to the Court of it actually being
reported are two pages from the beginning of 2016 reflecting
the [appellant’s] comments to his brig counselor, who informed
him to submit a chit to medical. Further [the psychiatrist]
apparently had within her power the ability to prescribe
whatever the [appellant] needed to treat his conditions. She
prescribed other medications and treatments for the
[appellant] and ensured that he received them. Logically, if the
CPAP machine was something that he needed and she was
aware, which apparently she was, then she could just as well
[have] prescribe[d] a new one for him since there seemed to be
67 For example, the appellant was allowed to have an extension cord running into
his cell to power the machine, which is a safety and security hazard. Although he
allowed it, the brig CO testified that he had never seen such an accommodation made
for a detainee or prisoner before.
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difficulty getting it from his home to the brig despite weekly
visits by his spouse and occasional visits from his command
representative. . . . [H]ad the [appellant] informed the CO
earlier in his stay about the machine, perhaps it could have
been made available much earlier based upon how quickly it
was provided once the CO personally learned about the
matter.68
The appellant also claims that he suffered sub-standard mental health
care when a mental health nurse practitioner and a licensed clinical social
worker stopped going to the brig on a regular basis to treat detainees and
prisoners. After the social worker stopped going to the brig, she was never
replaced. When the mental health nurse practitioner stopped going, she was
replaced by a psychiatrist who treated the appellant, although with less
frequent visits to the brig than the nurse had conducted. But none of these
mental health visits were required under any rule or regulation. The nurse
practitioner testified that although the care she and the social worker had
originally provided was ideal, it was by no means required under any
regulations, and the local naval hospital was always available for routine or
emergent mental health issues. The military judge found that there was no
regulation, order, or memorandum of understanding that required personal
visits to the brig by mental health personnel or social workers.
The hospital’s decision to discontinue care above and beyond what was
required, but still maintain a level of care well within standards, is not so
egregious or excessive as to constitute punishment. The appellant was
properly diagnosed by the nurse practitioner as suffering from adjustment
disorder with anxiety and depressed mood, in part due to his legal issues, and
she prescribed psychotropic medication to assist him. She even tried
acupuncture. Moreover, the nurse practitioner testified that the care her
replacement (the psychiatrist) provided was also an appropriate level of care.
In sum, the military judge found that the appellant was provided
adequate medical and mental health care. We find no clear error in the
military judge’s findings, and we agree with his conclusions.
b. Overly harsh conditions at the brig
The appellant alleges he suffered a broad litany of overly harsh
conditions: having to wear a waist belt and handcuffs when he left the brig to
see his TDC; suffering bruising on one of his wrists from a handcuff on one
occasion; being compelled to engage in physical training; performing physical
training without adequate ventilation and a working drinking fountain; not
68 Record at 373-74.
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receiving timely medical appointments; missing administrations of prescribed
medication when corpsmen did not show; and having only 20 minutes to eat
his meals.
The military judge found the following: the requirement to wear the
handcuffs and waist belt complied with appropriate policies, and the bruising
was properly identified and dealt with; physical training was mandated and
low intensity, and the drinking fountain and ventilation issues were corrected
when brought to the attention of the CO; the appellant received adequate
medical care; and the time for meals was also set by policy and consistent
with that of trainees in boot camp.
“Prisoners can be very vocal about their conditions without those
complaints actually reflecting any unlawful pretrial punishment.” United
States v. King, 61 M.J. 225, 228 (C.A.A.F. 2005). In United States v.
Crawford, 62 M.J. 411 (C.A.A.F. 2006), the CAAF accorded wide-ranging
deference to prison officials who adopt and execute “‘policies and practices
that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security.’” Id. at 416 (quoting Bell v. Wolfish,
441 U.S. 520, 547 (1979)). In light of confinement officials’ responsibility to
ensure a detainee’s presence for trial and the security of the facility, the
burden was on Crawford to demonstrate that the conditions of his
confinement were “unreasonable or arbitrary[.]” Id. at 414; see also
McCarthy, 47 M.J. at 167 (holding that “[i]f the conditions of pretrial
restraint are ‘reasonably related to a legitimate governmental objective, it
does not, without more, amount to punishment.’”) (quoting United States v.
James, 28 M.J. 214, 216 (C.M.A. 1989)) (additional citations omitted).
The military judge concluded that the appellant did not suffer from overly
harsh conditions while in pretrial confinement, and we agree.
c. Violation of confidentiality with attorney
The appellant asserts that confidentiality with his attorney was breached
because guards could overhear his conversations with his counsel. The
military judge found this not to be the case. In fact, when the appellant
complained that he could not adequately hear in the noncontact room—
because he suffers from hearing loss in both ears—he was allowed to meet
with his counsel in a room without a partition, while a guard stood outside
the room watching through a window. Then, when the appellant complained
about this arrangement, the CO ordered the appellant’s visits back into the
noncontact booth but enlarged the window cutout to increase auditory
capability. The military judge found no evidence that guards were listening
in or could overhear conversations between the appellant and his counsel in
either the noncontact booth or the room with no partition.
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The appellant also contends that during a search of his cell a brig guard
read privileged correspondence between him and his counsel. He believes this
to be so because a guard made an off-handed comment regarding the
appellant’s plan to seek two-for-one confinement credit for his time in PTC.
After considering all of the evidence, the military judge found that the
searches in the brig were conducted for safety, welfare, and health concerns,
and that reading the appellant’s correspondence was not improper.
[S]earches are conducted in the brig . . . [and] are done
randomly. Not every cell everyday but every three days or so is
reasonable. The searches include the CO’s office. It is
appropriate to search confidential envelopes, including those
labeled “attorney-client privilege,” for contraband. They are not
exempted from search by any regulation. When searched, the
contents are not supposed to be read but only [scanned] to see
if they contain contraband that would affect safety and welfare,
etc. Some facilities do read the contents, but that is not the
practice here[.]69
The military judge’s ruling makes no finding regarding where the guard
got his information concerning the appellant’s plan to seek two-for-one
confinement credit. The only evidence on this subject was the appellant, who
claimed the guard could only have gleaned this information from reading his
correspondence with his counsel. If the appellant’s claim is true, confidential
matters learned from a search of such materials should be protected to the
greatest extent possible. If the guard’s off-handed comment to the appellant
was a result of learning the information from any privileged source, it was
certainly improper.
Assuming, arguendo, there was a breach of the appellant’s attorney-client
privilege and statement, and thus an Article 13, UCMJ, violation, the
appellant has the burden to demonstrate any material prejudice. The
appellant has failed to demonstrate any material prejudice and is not entitled
to any administrative credit. See United States v. Villamil-Perez, 32 M.J. 341,
342 (C.M.A. 1991) (finding a violation of Article 13, UCMJ, but awarding no
confinement credit because of a lack of substantial prejudice to the
appellant).
It is significant that the military judge found the policies and practices of
the brig exemplary.
69 Id. at 370. See also id. at 373, where the military judge defined scanning as “to
read hastily.”
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[T]he brig began an accreditation audit process in March 2016
with the American Corrections Association [ACA], which is the
gold standard for correction facilities in the United States. The
audit concluded in July 2016. In August 2016 [the month
before the appellant argued his motion], the brig became the
first [Department of Defense facility outside of the continental
United States] to meet the ACA standards. The brig received
100 on all 540 standards[,] including those for medical care[.]70
In denying the motion, the military judge concluded that although the
treatment experienced by the [appellant] may have been uncomfortable
and/or unpleasant, “none of the conditions of which the [appellant] complains
has been shown to be sufficiently egregious as to give rise to a permissive
inference that the [appellant] is being punished or that they are so excessive
as to constitute punishment.”71
We agree with the military judge’s conclusions, and none of his findings
are clearly erroneous. The appellant has failed to establish that he was
subjected to pretrial punishment in violation of Article 13, UCMJ.
C. Court-martial order scrivener’s error
Although not raised by the parties, we note that the court-martial order
explains withdrawn specifications with a footnote that incorrectly states that
“Pursuant to pretrial agreement . . . Charge IV and its sole specifications [sic]
were withdrawn . . . .”72 In fact, the appellant pled guilty to Charge IV and its
sole specification. The footnote should reflect that “Charge V and its two
specifications were withdrawn . . . .” This fact is reflected in the record73 and
in other sections of the court-martial order.74 We test error in court-martial
orders under a harmless-error standard, United States v. Crumpley, 49 M.J.
538, 539 (N-M. Ct. Crim. App. 1998), and find this error did not materially
prejudice the appellant’s substantial rights. However, the appellant is
entitled to accurate court-martial records. Id. Accordingly, we order the
necessary corrective action in our decretal paragraph.
III. CONCLUSION
The findings and sentence are affirmed. The supplemental court-martial
order shall reflect that, pursuant to the PTA, Charge V and its two
70 Id. at 370.
71 Id. at 372.
72 CA’s Action of 23 Dec 2016.
73 Record at 265.
74 CA’s Action at 7-9.
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specifications, not Charge IV and its sole specification, were among the
charges and specifications withdrawn and dismissed without prejudice to
ripen into prejudice upon completion of appellate review.
Senior Judge MARKS and Judge WOODARD concur.
For the Court
R.H. TROIDL
Clerk of Court
26