United States v. Fisher

37 M.J. 812, 1993 CMR LEXIS 292, 1993 WL 241726
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 24, 1993
DocketNMCM 91 2554
StatusPublished
Cited by4 cases

This text of 37 M.J. 812 (United States v. Fisher) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fisher, 37 M.J. 812, 1993 CMR LEXIS 292, 1993 WL 241726 (usnmcmilrev 1993).

Opinions

MOLLISON, Judge:

The principal issue in this appeal from a general court-martial conviction is whether the appellant is entitled to have pretrial confinement credited against his sentence under Rule for Courts-Martial (R.C.M.) 305(k), Manual for Courts-Martial, United States, 1984, in addition to credit otherwise normally allowed under United States v. Allen, 17 M.J. 126 (C.M.A.1984). We con-elude the appellant is not entitled to additional credit and affirm.

Background.

Consistent with his pleas of guilty, the appellant was found guilty of three specifications of wrongful distribution of marijuana and one specification of larceny of government property in violation of Articles 112a and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 921. A military judge sitting alone sentenced the appellant to confinement for 30 months, forfeiture of all pay, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the adjudged sentence without modification. The appellant’s case is now before this Court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866. The appellant assigns a single error to his court-martial proceedings:

THE MILITARY JUDGE ERRED IN DENYING APPELLANT R.C.M. 305(K) CREDIT WHERE THE PRETRIAL CONFINEMENT RESULTED FROM A NON-COMPLIANCE WITH R.C.M. 305(H) AND ©-1

Material Facts.

At a pretrial session the appellant made a motion for appropriate relief in the nature of an order releasing him from pretrial confinement. UCMJ, art. 39(a), 10 U.S.C. § 839(a); R.C.M. 305(j), 906(b)(8). Evidence was adduced on the pretrial confinement process in the appellant’s case. See R.C.M. 305. This evidence shows that the appellant’s commanding officer ordered the appellant’s pretrial confinement on 6 November 1990. The confinement order and the commanding officer's memorandum to the Initial Review Officer [hereinafter the “IRO”] state that the appellant was detained on the alleged offense of wrongful distribution of controlled substances. The [814]*814confinement order reflects that pretrial confinement was deemed necessary because of the seriousness of the offense charged. The commanding officer’s memorandum to the IRO also states:

Not only is [the appellant] suspected of wrongful distribution of controlled substances, an excessive amount of government property has been recovered from his place of residence. [The appellant] also knows the identity of his confidential witness and has made threats toward him. These events give me reason to believe that [the appellant] is a flight risk and a threat to commit further misconduct.

Appellate Exhibit VI.

The IRO conducted a hearing on 14 November 1990. The record of that hearing includes a North Carolina search warrant for stolen government property, an inventory of property seized, a police report reflecting two semi-controlled buys of marijuana from the appellant by an informant, the informant’s 30 October 1990 sworn statement (name redacted) reflecting the informant had purchased marijuana from the appellant on numerous occasions, including the buys just mentioned, and the appellant’s 31 October 1990 confession reflecting two years of marijuana dealing. The IRO’s hearing record also contains a handwritten notation of the trial counsel’s name followed by “Detainee has knowledge of informant.” Id. Finally, the IRO’s record of hearing reflects the IRO decided to continue appellant’s pretrial confinement to ensure the appellant’s presence for trial because the appellant is accused of crime for which lengthy confinement may be awarded, the appellant is a flight risk, the appellant has allegedly tried to obstruct justice by threatening witnesses or tampering with evidence, and “it is foreseeable that the alleged and potential acts of the detainee pose a threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command.” Id. These findings were entered by the IRO by checking boxes on a prepared form.

At the evidentiary hearing both the confining commanding officer and the IRO were called to testify. Neither appears to have been a lawyer. The commanding officer testified in substance that he did not confine the appellant immediately after he learned that the appellant had admitted to marijuana distribution. Rather, he did so after the trial counsel reported that the appellant had communicated a threat to a Naval Investigative Service (NIS) protected witness and that there was enough specific information that NIS agents believed it was a credible threat. Based on the seriousness of the offense and the report that the appellant had communicated a threat, the commanding officer believed that the appellant should be in pretrial confinement so that he would not be a risk to himself or someone else, continue to distribute controlled substances, or carry out a threat. Record at 47. Further, the commanding officer testified that he knew the source of the information was a confidential informant, but he had not gone into specifics or the chain of information. He also testified that he had questioned trial counsel about the validity of the witness’ and the NIS agent’s statements and that trial counsel convinced him that there was substance to the matter. Record at 49-50. There is no evidence the commanding officer spoke with the NIS agents before he made his decision to confine the appellant and the record suggests he did not.

The IRO testified that the trial counsel, as a command representative at the IRO hearing, had indicated that the appellant had knowledge of the confidential witness and had allegedly made threats toward that witness. The IRO based his confinement decision on the possibility of resale of illegal drugs to Marines and others aboard base, the appellant’s admission to selling marijuana to an employee of the base exchange, the aforementioned threats, and the possibility of extensive confinement. In sum, he concluded the appellant was a flight risk and posed a threat. Record at 30. At trial the IRO stated he believed the source of the trial counsel’s information was the police or NIS, but he was not certain. The IRO also stated he did not [815]*815probe the matter of the threats further, question the accuracy of the statement respecting the threats, or know the nature of the threat. He confirmed that the threat was part of the basis for continuing appellant’s pretrial confinement. Record at 32. The IRO also stated that corroborating information respecting the alleged threat was not given to him, and he surmised it was not in order to protect the identity of the person threatened. No NIS agent appeared at the IRO hearing.

At trial, however, the investigating NIS agent was called and testified as to the nature and source of the alleged threat. In substance he confirmed that NIS had received information that the appellant had uttered a threat respecting a party who was very likely the person who had informed upon the appellant and that the threat was that the witness would never make it to testify in a court of law. Record at 16.

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Cite This Page — Counsel Stack

Bluebook (online)
37 M.J. 812, 1993 CMR LEXIS 292, 1993 WL 241726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fisher-usnmcmilrev-1993.