2013 (September Term)
United States v. Danylo, 73 M.J. 183 (pretrial confinement which exceeds an adjudged sentence is not per se prejudicial).
2006
United States v. Regan, 62 M.J. 299 (the procedural protections or the credit provided by RCM 305 in connection with pretrial confinement apply to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement; to come within the scope of RCM 305, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his freedom; thus, restriction tantamount to confinement does not necessarily trigger the application of RCM 305).
United States v. Crawford, 62 M.J. 411 (Article 13, UCMJ,
prohibits: (1) intentional imposition of punishment on an accused
before his or her guilt is established at trial; and (2) arrest or
pretrial confinement conditions that are more rigorous than necessary
to ensure the accused’s presence at trial).
(if an accused establishes a
violation of Article 13, UCMJ, then RCM 305(k) provides him additional
credit for each day of pretrial confinement that involves an abuse of
discretion or unusually harsh circumstances).
(in this case, the matters of
record support two conclusions; first, the record contradicts the
accused’s claims about lack of visitation and ability to participate in
group activities; the record indicates he had numerous visits from his
family and participated in group religious and counseling sessions; in
addition, the accused’s broad claims of isolation and exclusion from
confinement facility activities are discredited; second, there is a
sound basis in the record for the conclusion that the accused presented
a high risk of future serious misconduct including mass violence and
physical harm to others; balancing these record matters against the
accused’s post-trial declaration, and taking the unrefuted portions of
that declaration as true, this Court holds that the accused has not met
his burden of demonstrating a violation of Article 13, UCMJ).
(the accused appeared to have
had access to money as well as weapons and explosives; thus, he
presented a special security concern for confinement facility officials
and, from the outset, the accused warranted heightened scrutiny; while
the conditions of his pretrial confinement were stark, the accused has
presented nothing in his declaration to refute the very strong
indication that his was a unique case requiring special security
considerations; once the government has exercised its conceded
authority to detain a person pending trial, it obviously is entitled to
employ devices that are calculated to effectuate this detention
provided such devices are reasonable under the circumstances and
constitutional; moreover, the accused’s failure to complain prior to
his appeal to the Court of Criminal Appeals is strong evidence that
Article 13, UCMJ, was not violated).
(arbitrary policies imposing
maximum custody upon pretrial prisoners are not condoned; an appellate
court will scrutinize closely any claim that maximum custody was
imposed solely because of the charges rather than as a result of a
reasonable evaluation of all the facts and circumstances of a case;
where an appellate court finds that maximum custody was arbitrary and
unnecessary to ensure an accused’s presence for trial, or unrelated to
the security needs of the institution, it will consider appropriate
credit or other relief to remedy this type of violation of Article 13,
UCMJ).
(in this case, the serious
charges against the accused, the potential for lengthy confinement, the
accused’s threats and his apparent ability to execute those threats,
his access to unknown quantities of weapons and explosives, and his
professed willingness to resort to violent means against what he viewed
as government oppression provide sufficient reason to classify him as a
high-risk inmate; prison administrators should be accorded wide-ranging
deference in the adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and discipline
and to maintain institutional security; an appellate court will not
second-guess the security determinations of confinement officials under
these circumstances; moreover, the accused has not provided specific
allegations that he was treated differently from other maximum security
prisoners).
(where an accused has failed
to present the substantial evidence necessary to support his Article
13, UCMJ, claim, he has failed to sustain his burden of establishing
entitlement to additional sentencing credit for a violation of Article
13, UCMJ).
2003
United
States v. King, 58 M.J. 110 (the determination
whether
the conditions of restriction are tantamount to confinement must be
based on
the totality of the conditions imposed.).
(factors to be considered in determining whether pretrial
restriction is
tantamount to confinement include: the nature of the restraint
(physical or
moral); the area or scope of the restraint (confined to post, barracks,
room,
etc.); the types of duties, if any, performed during the restraint
(routine
military duties, fatigue duties, etc.); the degree of privacy enjoyed
within
the area of restraint; whether the accused was required to sign in
periodically
with some supervising authority; whether a charge of quarters or other
authority periodically checked to ensure the accused’s presence;
whether the
accused was required to be under armed or unarmed escort; whether and
to what
degree the accused was allowed visitation and telephone privileges;
what
religious, medical, recreational, educational, or other support
facilities were
available for the accused’s use; the location of the accused’s sleeping
accommodations; and whether the accused was allowed to retain and use
his
personal property (including his civilian clothing)).
United
States v. Wardle, 58 MJ 156 (where the facts
reveal that
appellant was a flight risk and that less severe forms of restraint
were
inadequate, pretrial confinement was authorized under R.C.M. 305).
(the Court need not reach the issue of whether suicide risk in this
case, or
under other circumstances, would warrant pretrial confinement; in light
of the
other factors in the record, including the amount of money appellant
had taken
and his failure to report to duty (which was only later followed by an
attempted suicide with an undetermined predicate), appellant
established himself
as a flight risk within the meaning of R.C.M. 305).
United
States v. Inong, 58 MJ 460 (Article 13 prohibits
two
things: (1) the intentional imposition of punishment on an accused
before his
or her guilt is established at trial, i.e., illegal pretrial
punishment, and
(2) arrest or pretrial confinement conditions that are more rigorous
than
necessary to ensure the accused’s presence at trial, i.e., illegal
pretrial confinement;
if an accused, or appellant, can demonstrate that either existed, he or
she is
entitled to sentence relief).
(in United States v.
Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a
majority of
this Court held that we will not invoke waiver of alleged Article 13
violations
unless there is an affirmative, fully developed waiver on the record;
today,
however, the Court concludes Huffman’s
affirmative waiver rule is
unworkable;
as a result, the Court now overrules Huffman and begins
followings the
"raise
or waive" rule required by the Manual for Courts-Martial, United
States,
as relates to assertions of illegal pretrial confinement and
punishment; in so
doing, the Court also overrules United States v. Southwick,
53 M.J. 412
(C.A.A.F. 2000), and United
States v. Tanksley, 54 M.J. 169 (C.A.A.F.
2000), to
the extent they establish a "tantamount to affirmative waiver" rule
in the Article 13 arena; the Court therefore holds that once this
opinion
becomes final, failure at trial to seek sentence relief for violations
of
Article 13 waives that issue on appeal absent plain error; having said
that,
however, the Court urges all military judges to remember that nothing
precludes
them from inquiring sua sponte into whether Article 13 violations have
occurred, and prudence may very well dictate that they should).
2002
United
States v. Smith, 56 MJ 290 (pretrial confinement,
imposed
and administered in a lawful manner, is not per se cruel or unusual
punishment
under either Article 55 or the Eighth Amendment, and no constitutional
violation arises from failure to give credit for pretrial detention
unless
there is a violation of the Equal Protection Clause of the Fifth
Amendment).
(as written, 18 USC § 3585(b) and DODI 1325.7 apply only to
prisoners
serving sentences to adjudged confinement; the decision whether to
extend DODI
1325.7 or RCM 305 to give pretrial confinement credit to persons not
sentenced
to confinement is a matter of Executive prerogative, and, to date,
neither the
President nor the Secretary of Defense has exercised that prerogative).
United
States v. Chapa, 57 MJ 140 (the defense bears the
burden
of raising an issue of compliance with any of the procedures addressed
in RCM
305 by making a motion that specifically focuses the attention of trial
participants on the alleged shortcoming).
(any issue regarding failure to conduct the 48-hour review of
pretrial
confinement is waived by failure to specifically raise the issue at
trial, and
an asserted violation of one provision of RCM 305 is not sufficient to
preserve
the issue whether another provision was violated).
(any issue founded on noncompliance with RCM 305 was waived where:
(1)
appellant did not assert that his restriction was tantamount to
confinement,
nor did he assert any violations of RCM 305; (2) the defense request
for relief
focused solely on Article 13; (3) defense counsel’s question about the
commander’s review of his decision to seize appellant’s personal
property was
insufficient to raise and preserve the issue because it addressed only
the
seizure of appellant’s property and not the restraints on his liberty,
and
because it was too general to alert the military judge or the
Government to a
complaint that formal review processes were not followed; (4) defense
counsel
had the opportunity to ask the commander whether the conditions on
appellant’s
liberty were reviewed in accordance with RCM 305(h) and (i), or to
present
other evidence of noncompliance, but he did not avail himself of that
opportunity).