United States v. Katso

• Court: Court of Appeals for the Armed Forces
• Decided: March 12, 2018
• Docket: 17-0326/AF
• Status: Published

Opinion

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellant v. Joshua KATSO, Airman Basic United States Air Force, Appellee No. 17-0326 Crim. App. No. 38005 (rem) Argued December 5, 2017—Decided March 12, 2018 Military Judges: William C. Muldoon Jr., and Matthew D. Van Dalen For Appellant: Captain Tyler B. Musselman (argued); Mary Ellen Payne, Esq. (on brief). For Appellee: Captain Patrick A. Clary (argued); Major Isaac C. Kennen (on brief); Colonel Jane E. Boomer. Judge RYAN delivered the opinion of the Court, in which Chief Judge STUCKY, Judges OHLSON and SPARKS, and Senior Judge EFFRON, joined. _______________

Judge RYAN delivered the opinion of the Court. The United States Air Force Court of Criminal Appeals (AFCCA) wrongly assumed that the procedures and penal- ties contained in Rule for Courts-Martial (R.C.M.) 305 (enti- tled “Pretrial confinement”) applied in full to Appellee—an adjudged and sentenced prisoner whose sentence has been ordered executed. Accordingly, it determined that Appellee was entitled to a sua sponte continued confinement hearing within seven days of the Government’s certification to this Court pursuant to Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867 (2012), and day-for-day credit for each day served in confinement between certifica- tion and the date of the continued confinement hearing. United States v. Katso (Katso III), No. ACM 38005 (rem), slip op. at 9−10 (A.F. Ct. Crim. App. Feb. 2, 2017) (unpublished). United States v. Katso, No. 17-0326/AF Opinion of the Court

Appellee was not in pretrial confinement, and neither of the cases the AFCCA relied upon—Moore v. Akins, 30 M.J. 249, 253 (C.M.A. 1990), and United States v. Miller, 47 M.J. 352, 361−62 (C.A.A.F. 1997)—purported to adopt all R.C.M. 305 procedures and penalties in post-trial cases pending ap- pellate review to this Court. Moreover, R.C.M. 305 does not govern this case: Article 57a(c), UCMJ, 10 U.S.C. § 857a(c) (2012), is the statute governing deferral of continued con- finement pending appellate review under Article 67(a)(2), UCMJ. While that statute provides that convicted prisoners may seek deferral of confinement pending review of a deci- sion favorable to the accused certified to this Court, and that the relevant secretary may grant such deferral and order the prisoner released, it does not provide guidance let alone re- quirements as to the timing of such review, or the penalties, if any, for failing to initiate such review. In any event, Appellee, an adjudged and sentenced pris- oner, received a continued confinement hearing during the pendency of the Government’s certificate of review to this Court, once he asked for one. That hearing was resolved against him, he remained confined, and all periods of con- finement served were credited against his adjudged sentence once the decision of the AFCCA was reversed by this Court in 2015. There was no prejudice to the substantial rights of the accused, Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012), and no basis for awarding confinement credit even if he was entitled to a hearing sua sponte. We affirm Appellee’s findings and sentence, but reverse the erroneous decision of the AFCCA in awarding confine- ment credit. I. Facts and Procedural History

Appellee was convicted, contrary to his pleas, by a gen- eral court-martial composed of officer and enlisted members of one specification of aggravated sexual assault, one specifi- cation of burglary, and one specification of unlawful entry, in violation of Articles 120, 129, and 134, UCMJ, 10 U.S.C. §§ 920, 929, 934 (2012). The court-martial sentenced Appel- lee to confinement for ten years, a dishonorable discharge, and forfeiture of all pay and allowances. The convening au- thority approved the sentence as adjudged.

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On April 11, 2014, the AFCCA set aside the findings and sentence. United States v. Katso (Katso I), 73 M.J. 630, 642 (A.F. Ct. Crim. App. 2014). On June 9, 2014, the Judge Ad- vocate General (TJAG) of the Air Force certified an issue to this Court, pursuant to Article 67(a)(2), UCMJ. Argument on the certified issue was heard at this Court on October 7, 2014. While the first certification was pending, Appellee remained in confinement. Appellee requested re- view of his continued confinement for the first time on June 3, 2015, approximately one year after TJAG certification. On June 4, 2015, Appellee filed a motion with our Court for ap- propriate relief in the event this Court reversed the AFCCA’s decision on the certified issue. On June 5, 2015, Appellee also filed a petition for extraordinary relief in the nature of a writ of habeas corpus with AFCCA, requesting to be released from confinement. On June 6, 2015, a continued confinement hearing was ordered to determine whether Ap- pellee should remain confined pending the decision of this Court. On June 15, 2015, Appellee’s continued confinement hearing was held. The Continued Confinement Reviewing Officer determined that Appellee should remain in confine- ment pending the resolution of his appeal because it was foreseeable that Appellee was both a flight risk and would engage in other serious criminal misconduct, and less severe forms of restraint were inadequate. Appellee remained in confinement. Subsequently, this Court issued its opinion in United States v. Katso (Katso II), 74 M.J. 273 (C.A.A.F. 2015), and reversed the decision of the AFCCA, effectively reinstating Appellee’s convictions and sentence.1 Id. at 284. The record was remanded to the AFCCA for further proceedings under Article 66, UCMJ, 10 U.S.C. § 866 (2012). Id. Appellee’s pe- tition for a writ of certiorari was denied. Katso v. United States, 136 S. Ct. 1512 (2016).

1 In our decision, we denied Appellee’s motion for appropriate relief without prejudice to seeking relief upon remand to the lower court. Katso II, 74 M.J. at 284 n.8.

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On remand before the AFCCA, Appellee asserted, inter alia, that he was entitled to day-for-day sentence relief for procedural errors under R.C.M. 305 relating to his confine- ment pending resolution of the Government appeal. Katso III, No. ACM 38005 (rem), slip op. at 2, 4. The AFCCA, rely- ing on Moore, Miller, and R.C.M. 305(i)(2), held that a con- tinued confinement hearing was required within seven days of TJAG certification. Id. at 9. Moreover, relying on lan- guage in R.C.M. 305, particularly R.C.M. 305(k), the AFCCA awarded Appellee with 365 days of credit to his confinement, representing day-for-day credit for the period between certi- fication and the date of the continued confinement hearing without testing for prejudice.2 Id. at 10. Pursuant to Article 67(a)(2), UCMJ, TJAG then certified following issues: I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT UNITED STATES v. MILLER, 47 M.J. 352 (C.A.A.F. 1997) REQUIRED THE GOVERNMENT TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL'S DECISION ON CERTIFICATION. II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT GOVERNMENT'S FAILURE TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL'S DECISION ON CERTIFICATION AUTOMATICALLY RESULTED IN DAY-FOR- DAY SENTENCING CREDIT. III. WHETHER APPELLEE WAS PREJUDICED WHEN THE GOVERNMENT FAILED TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF CERTIFICATION.

2 The AFCCA affirmed Appellee’s findings and sentence as to the aggravated sexual assault and burglary charges and specifica- tions, and set aside and dismissed with prejudice the unlawful en- try charge and specification. Katso III, No. ACM 38005 (rem), slip op. at 10.

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II. Discussion

Whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certi- fication to this Court under Article 67(a)(2), UCMJ, is a question of law, which we review de novo. United States v. Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003) (citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)). The overarching problem with the AFCCA’s approach to this case is that, without any case law, or any rule-based or statutory authority, it imposed the entirety of R.C.M. 305 procedures and penalties, crafted for pretrial confinement, on the Government in a completely different context. See United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997) (procedural safeguards are due to pretrial detainees, who are accused, but not yet been proven guilty of an offense, to ensure due process); United States v. Heard, 3 M.J. 14, 20 (C.M.A. 1977) (“[U]nless confinement prior to trial is com- pelled by a legitimate and pressing social need sufficient to overwhelm the individual’s right to freedom—given the fact that probable cause exists to believe he has committed a crime—restrictions unnecessary to meet that need are in the nature of intolerable, unlawful punishment.”); Bell v. Wolf- ish, 441 U.S. 520, 535–539 (1979) (recognizing that “[f]or under the Due Process Clause, a detainee may not be pun- ished prior to an adjudication of guilty in accordance with due process of the law”); see also Article 13, UCMJ, 10 U.S.C. § 813 (2012) (proscribing pretrial punishment). We agree with Chief Judge Drew, Katso III, No. ACM 38005 (rem), slip op. at 11−14 (Drew, C.J., dubitante) (opining that Appellee remained an adjudged and sentenced prisoner until appellate review was final and R.C.M. 305 did not apply). Consequently, interposing the rule-based seven-day hearing requirement from R.C.M. 305(i)(2) in this case, which result- ed in rule-based day-for-day credit under R.C.M. 305(j)(2) and R.C.M. 305(k) for failure to comply with procedures that did not apply to Appellee’s situation, was error. Moreover, the AFCCA’s reliance on Moore and Miller to impose the requirements of R.C.M. 305 in toto was equally unfounded. Neither case purported to impose the entirety of R.C.M. 305 procedural requirements or penalties in a search for “a practical means ... to release accused servicemembers

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from confinement pending appeal in meritorious cases.” Moore, 30 M.J. at 253. And, in any event, Moore was decided prior to the prom- ulgation of Article 57a(c), UCMJ, which provided such a practical means. Congress established Article 57a(c), UCMJ, to govern the treatment of convicted prisoners where “the sentence to confinement has been ordered executed, but in which review of the case under ... (article 67(a)(2)) is pend- ing.” Article 57a(c), UCMJ, permits “the Secretary con- cerned” to “defer further service of the sentence to confine- ment while that review is pending.” In other words, convicted prisoners may seek deferral of confinement pend- ing review of a decision favorable to the accused certified to this Court by TJAG and the relevant secretary may grant such deferral and order the prisoner released. Miller was decided after Article 57a(c), UCMJ, was en- acted, and opined that, upon TJAG’s certification to this Court of a favorable decision to an accused from a Court of Criminal Appeals (CCA), the accused must “be released in accordance with that decision or a hearing on continued con- finement be conducted under RCM 305.” Miller, 47 M.J. at 362. But even Miller did not purport to hold that all the pro- cedures and penalties contained within R.C.M. 305 traveled along with a R.C.M. 305-styled continued confinement hear- ing. Moreover, Miller failed to address Article 57a, UCMJ, let alone its statutory primacy on the question of deferral of sentence, including confinement, during the pendency of an Article 67(a)(2), UCMJ, appeal to this Court. We have no doubt that where a prisoner whose “sentence to confinement has been ordered executed, but in which review of the case under ... (article 67(a)(2)) is pending,” seeks a continued confinement hearing, the language of Article 57a(c), UCMJ, is broad enough to permit such a hearing so that the relevant secretary can determine whether to release the prisoner in accordance with Article 57a(c), UCMJ. But the statute is silent on how or when the determination to release is to be made, and neither the President nor a majority of the service secretaries have promulgated procedural rules or remedies implementing the

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statute to address these questions.3 While such guidance would be both helpful and appropriate, see, e.g., United States v. Kelson, 3 M.J. 139, 140−42 (C.M.A. 1977); Article 36, UCMJ, 10 U.S.C. § 836 (2012); Article 140, UCMJ, 10 U.S.C. § 940 (2012), the AFCCA itself acted ultra vires in imposing the procedural requirements and penalties of R.C.M. 305 on the Government. Barker v. Wingo, 407 U.S. 514, 523 (1972) (concluding that a court should “confine [its] efforts” in the adjudicative process rather than engage in legislative or rulemaking activity). Finally, even assuming arguendo that the Government should have held a continued confinement hearing sua sponte, within seven days or otherwise, Appellee suffered no prejudice from its failure to do so. Article 59(a), UCMJ; see United States v. Ward, 74 M.J. 225, 227 (C.A.A.F. 2015) (“We review prejudice determinations under a de novo standard of review.” (citation omitted)). A continued con- finement hearing was held when Appellee requested it. And that hearing concluded that Appellee was not entitled to be released. Thus, in the end, since Appellee’s sentence was ef- fectively restored by this Court, Katso II, 74 M.J. at 284, the time Appellee served between certification and the confine- ment hearing was in accordance with his adjudged and ap- proved sentence. We conclude that the AFCCA erroneously awarded Appellant confinement credit when none was due.4

3 The Secretary of the Navy has promulgated the following rule: “[d]eferment requests pursuant to Article 57a(c) shall be ad- dressed to the Secretary of the Navy via the Judge Advocate Gen- eral (OJAG Code 20).” Dep’t of the Navy, Judge Advocate General Instr. 5800.7F, Manual of the Judge Advocate General para. 0155a.b (June 26, 2012) (JAGMAN). 4 Appellee’s motion to dismiss the certified issues, Katso, 17-0326/AF, App. Mot. to Dismiss (Jan. 17, 2018), is denied; Ap- pellee’s motion to supplement the record, Katso, 17-0326/AF, App. Mot. to Supp. (Jan. 29, 2018), is granted. By answering the certi- fied questions, we neither rule on a moot question nor render an advisory opinion in this case. United States v. Chisholm, 59 M.J. 151, 152 (C.A.A.F. 2003); cf. United States v. Clay, 10 M.J. 269, 269 (C.M.A. 1981) (per curiam); United States v. McIvor, 21 C.M.A. 156, 156, 44 C.M.R. 210, 210 (1972). As evident from the supplement to the record, which the Government inexplicably op- poses our review of, Katso, 17-0326/AF, Answer to App. Mot. to

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Therefore, we answer Issues I and II in the affirmative and Issue III in the negative. III. Judgment

The decision of the United States Air Force Court of Criminal Appeals is affirmed with respect to the findings and sentence, but it is reversed as to the erroneous action taken granting 365 days of administrative credit toward Ap- pellee’s sentence to confinement.

Supp. (Feb. 2, 2018), Appellee is on Mandatory Supervised Re- lease (MSR), which continues until “expiration of [his] sentence to confinement.” Dep’t of the Air Force, Instr. 31-105, Security, Air Force Corrections System para. 12.24 (June 15, 2015, as amended by Air Force Guidance Memorandum 2017-01, June 28, 2017); see also Dep’t of Defense, Instr. 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, Enclo- sure 3, at 94 (Mar. 11, 2013, incorporating Change 2, Sept. 22, 2017) (MSR can be revoked, requiring a servicemember to serve the remainder of his confinement sentence); United States v. Pena, 64 M.J. 259, 262 (C.A.A.F. 2007); Moultrie v. Sec. of the Army, 723 F. Supp. 2d 1230, 1235−37 (C.D. Cal. 2010) (habeas petition not moot because petitioner was still in military “custody” while on MSR). Thus, given the nature of the MSR program, this Court’s resolution of the certified issues would still result in a “material alteration of the situation for the accused,” in the form of Appel- lee’s final sentence to confinement affirmed on appeal. Clay, 10 M.J. at 269 (internal quotation marks omitted) (quoting McIvor, 21 C.M.A. at 158, 44 C.M.R. at 212).