United States v. Leese

• Court: Court of Appeals for the Armed Forces
• Decided: June 4, 2025
• Docket: 25-0024/AR
• Status: Published

Opinion

This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________

UNITED STATES Appellee

v.

Nathan G. LEESE, Private First Class United States Army, Appellant

No. 25-0024 Crim. App. No. 20230250

Argued April 8, 2025—Decided June 4, 2025

Military Judge: J. Harper Cook

For Appellant: Lieutenant Colonel Ryan S. Coward (argued); Colonel Philip Staten, Lieutenant Colonel Autumn Porter, and Major Robert Luyties (on brief).

For Appellee: Captain Nicholas A. Schaffer (argued); Colonel Richard E. Gorini, Major Lisa Limb, and Captain Anthony J. Scarpati (on brief); Major Justin L. Talley.

Chief Judge OHLSON delivered the opinion of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined. _______________ United States v. Leese, No. 25-0024/AR Opinion of the Court

Chief Judge OHLSON delivered the opinion of the Court. I. HOLDING We hold as follows: Confinement credit mandated by United States v. Pierce 1 applies only to a segmented sen- tence that corresponds to an offense that previously served as the basis for nonjudicial punishment; Pierce credit does not apply to an aggregate term of confinement. II. OVERVIEW Since its inception in the 1950s, Article 15 of the Uni- form Code of Military Justice (UCMJ), has included some form of the following provision: The imposition and enforcement of disciplinary punishment under this article for any act or omis- sion is not a bar to trial by court-martial for a se- rious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary pun- ishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punish- ment to be adjudged in the event of a finding of guilty. 10 U.S.C. § 815(f) (2018). In United States v. Pierce, our predecessor court reached two key conclusions upon interpreting this pas- sage. First, the Pierce court noted that “[i]t is clear from the language of this provision that Congress did not intend for imposition of nonjudicial punishment to preclude the sub- sequent court-martial of a servicemember accused of a se- rious offense.” 27 M.J. at 368. And second, the Pierce court opined that “[i]t does not follow that a servicemember can be twice punished for the same offense.” Id. at 369. In re- gard to the latter point, Judge Cox invoked the memorable phrase that “in these rare cases, an accused must be given

1 27 M.J. 367 (C.M.A. 1989).

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complete credit for any and all nonjudicial punishment suf- fered: day-for-day, dollar-for-dollar, stripe-for-stripe.” Id. Although the calculation of what has become known as “Pierce credit” has always been somewhat intricate, 2 the application of that credit used to be quite simple. “When Congress first enacted the UCMJ, courts-martial adjudged only one sentence even if they found the accused guilty of multiple offenses.” United States v. Flores, 84 M.J. 277, 280 (C.A.A.F. 2024). Under this “unitary sentencing” approach, a military judge would simply “subtract” the amount of Pierce credit from the total adjudged sentence. But no more. “In the Military Justice Act of 2016, . . . Congress in- troduced segmented sentencing in which a separate term of confinement and fine is adjudged for each specification [for] which there was a finding of guilty when sentencing is conducted by the military judge.” United States v. Smith, 2024 CAAF LEXIS 759, at *20 n.5, 2024 WL 4941954, at *7 n.5 (C.A.A.F. Nov. 26, 2024). So, instead of “unitary sen- tencing” in the military justice system we now have “seg- mented sentencing.” 3 III. FACTS All of this leads us to the facts in this case. Here, the military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas, of two specifica- tions of willfully disobeying a superior commissioned of- ficer and one specification of assault consummated by a battery in violation of Articles 90 and 128, UCMJ, 10

2 A Table of Equivalent Nonjudicial Punishments has now been created to facilitate that calculation. Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 2, § V, para. 2-7-21, tbl.2-10 (2020). 3 Rule for Courts-Martial (R.C.M.) 1002(b)(3) expands on this

point: “All punishments other than confinement or a fine avail- able under R.C.M. 1003, if any, shall be determined as a single, unitary component of the sentence, covering all of the guilty findings in their entirety. The military judge shall not segment those punishments among the guilty findings.” (At the time of Appellant’s court-martial, this provision was at R.C.M. 1002(d)(2)(C) (2019 ed.).)

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U.S.C. §§ 890, 928 (2018). The military judge then sen- tenced Appellant as follows: to be reduced to the grade of E-2; to be discharged from the service with a bad-conduct discharge; to be confined for fourteen days for the first Ar- ticle 90 specification; to be confined for thirty days for the second Article 90 specification; and to be confined for three months for the Article 128 specification. The military judge then ruled that the periods of confinement would run con- currently. 4 However, because Appellant already had re- ceived nonjudicial punishment for the two Article 90 spec- ifications, the military judge also ruled that Appellant was entitled to receive Pierce credit. The parties agreed that consistent with the holding in Pierce, Appellant should receive confinement credit. How- ever, they disagreed about how that credit should be ap- plied. The Government argued that the confinement credit should apply only to the separate sentences imposed for each Article 90 violation. In other words, the Government took the position that fourteen days of credit should be ap- plied to the sentence of confinement for one Article 90 of- fense, and the other fourteen days of credit should be ap- plied to the other Article 90 violation. The defense, on the other hand, argued that the Pierce credit should apply to the sentence as a whole. In other words, trial defense coun- sel took the position that because the segmented sentences were to run concurrently, the twenty-eight days of Pierce credit should be applied to the three months of total con- finement Appellant was scheduled to serve. In response, the military judge explained his views of the issue. Rarely have I found myself in a position where I have no guidance whatsoever. On whether to blindly follow Pierce with a disregard to seg- mented sentencing and, frankly, with a disregard

4 R.C.M. 1002(d)(2)(B) (2019 ed.) states that “[i]f a sentence includes more than one term of confinement, the military judge shall determine whether the terms of confinement will run con- currently or consecutively.”

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to the nature of the Article 15s themselves. If I were to do that, the argument would be the ac- cused is getting credit where credit is not due. Af- ter all, if he received Article 15s for disobedience, he should get credit for the disobedience offenses. That’s the one hand. On the other hand, if I’m going to follow the government’s proposed solution, I’m in uncharted waters having to apply what used to be black-and- white sentencing credit principles . . . . But the appeal of the government’s argument is that there’s no danger of either over crediting the ac- cused or under []crediting . . . the accused with what he’s entitled to. The military judge then ruled in favor of the Govern- ment and applied the Pierce credit only to the two Article 90 offenses “[b]ecause these Article 15s are so specific and are basically lifted from the Article 15s themselves to this charge sheet.” Accordingly, he credited Appellant with one pay grade credit against the sentence to reduction, fourteen days of credit against the segmented sentence of confine- ment imposed for the first Article 90 specification, fourteen days of credit against the segmented sentence of confine- ment imposed for the second Article 90 specification, and $1,142 against any automatic forfeitures. 5 The military judge noted in the judgment of the court that even “[a]fter applying those credits and then running the segmented confinement sentences concurrently, the total adjudged sentence to confinement remains 3 months.” The CCA subsequently affirmed the military judge’s ruling. Leese, 84 M.J. at 753. We then granted Appellant’s petition for grant of review on the following issue: “Whether the military judge and the Army Court correctly applied United States v. Pierce, 27 M.J. 367 (C.M.A. 1989)

5 The United States Army Court of Criminal Appeals (CCA) later concluded that the credited amount for any automatic for- feitures should have been $1,042. United States v. Leese, 84 M.J. 748, 751 n.4 (A. Ct. Crim. App. 2024). Trial defense counsel used the correct amount in her R.C.M. 1106 submission to the con- vening authority.

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in awarding credit for Appellant’s two prior instances of nonjudicial punishment to a segmented sentence.” United States v. Leese, __ M.J. __ (C.A.A.F. 2024) (order granting review). IV. STANDARD OF REVIEW “Pierce credit has long been considered a form of con- finement credit.” United States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019). The proper application of a confinement credit is a question of law reviewed de novo. See United States v. Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002) (re- viewing de novo the “applications of credit for illegal pre- trial punishment and lawful pretrial confinement”); see also United States v. Harris, 78 M.J. 434, 436 (C.A.A.F. 2019) (“This Court reviews the question whether an appel- lant is entitled to pretrial confinement credit de novo.” (ci- tation omitted)). Therefore, determining the proper appli- cation of Pierce credit is a question of law which we review de novo. V. DISCUSSION In its brief, the Government argues that Pierce credit should only be applied “to the segmented sentence for the offense previously punished” via nonjudicial punishment (NJP). Otherwise, “an accused would receive both the ben- efit of a concurrent sentence and Pierce credit, with the Pierce credit applying to punishments for offenses that were wholly separate and of a different degree of criminal- ity than the NJP offenses.” Indeed, the Government asserts that taking a different approach could result in a convicted servicemember receiving a sentencing “windfall.” In contrast, Appellant offers a number of arguments in support of his position that “Pierce credit must be applied against the total adjudged sentence.” In sum, Appellant ar- gues that this approach “is consistent with past practice, [comports with] the awarding of other forms of sentence credit, ensures all portions of the sentence receive mean- ingful relief, and recognizes that the government controls the charge sheet.” We will address each of Appellant’s ar- guments in turn.

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First, Appellant notes that the military judge’s applica- tion of Pierce credit in the instant case “had zero impact on the length of the sentence that [A]ppellant [actually] served. . . . [Although] [A]ppellant’s sentence was short- ened on paper, it was not reduced in reality.” He then avers that any Pierce credit afforded by a military judge must be “meaningful,” i.e., it must have a tangible effect on the pun- ishment the servicemember actually experiences. We disagree. We begin by noting that in support of his position, Appellant cites cases such as Spaustat, 57 M.J. at 256, United States v. Larner, 1 M.J. 371 (C.M.A. 1976), and United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983). However, as he acknowledges, those cases involved illegal pretrial confinement credit—not Pierce credit—and we conclude that both the reasoning and the holdings in those two areas of the law are not interchangeable. We reach that conclusion because deterring the government from improperly placing a servicemember in pretrial confinement is patently distinct from ensuring that a convicted servicemember receives sentencing credit at a court-martial if he already had received nonjudicial punishment for the same offense via a lawful Article 15.6

6 Appellant seeks to tie together these two lines of cases as follows: “Though Larner and Suzuki dealt with illegal pretrial confinement and its processes, this Court in Gammons explained that Pierce credit should be adjudicated ‘in a manner similar to [the] adjudication of credit for illegal pretrial confinement.’ ” (Al- teration in original.) (Quoting United States v. Gammons, 51 M.J. 169, 184 (C.A.A.F. 1999).) However, we do not ascribe to this passage from Gammons the same meaning that Appellant apparently does. The full sentence from the Gammons opinion states as follows: If the accused chooses to raise the issue of credit for prior punishment during an Article 39(a) ses- sion rather than on the merits during sentencing, the military judge will adjudicate the specific credit to be applied by the convening authority against the adjudged sentence in a manner simi- lar to [the] adjudication of credit for illegal pre- trial confinement.

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And further, we reject Appellant’s contention that Pierce credit must result in a tangible benefit because: applicable statutes are silent on this point; our case law imposes no such requirement; and as reflected below, we find no basis to impose such a mandate. Second, Appellant urges this Court to “adopt a simple- to-apply principle that requires Pierce credit [to] be applied against the total adjudged sentence . . . . This proposal is easy to apply, easy to understand, and ensures consistency of application across the services and potential sentences.” However, we do not find this point compelling. Simply stated, all of the benefits cited in favor of applying Pierce credit to the total adjudged sentence pertain equally to a determination that Pierce credit applies only to the seg- mented sentence that corresponds to the offense that pre- viously served as the basis for nonjudicial punishment. Third, Appellant argues as follows: The government has a choice: punish an ac- cused via nonjudicial punishment; via court-mar- tial; or do both. When it does both, an accused must be afforded credit to prevent double punish- ment . . . . The government should not be permit- ted to charge prior non-judicial punishment and then hide behind the shield of concurrent sen- tences to punish the appellant twice for the same misconduct . . . . However, we simply do not agree with Appellant’s conten- tion that a convicted servicemember will receive “double punishment” if Pierce credit is applied to the segmented sentence that corresponds to the offense that previously served as the basis for nonjudicial punishment rather than to the term of confinement as a whole. To the contrary, we conclude that even when a convicted servicemember does not receive tangible relief in terms of a reduction in his

Gammons, 51 M.J. at 184. This broader context makes it clear to us that the Gammons court was not opining that because credit for illegal pretrial confinement must result in tangible re- lief then Pierce credit must also result in tangible relief. Rather, the Gammons court was merely mentioning a procedural point.

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period of confinement because of a concurrent sentence, the imperative of the Pierce decision still will be obeyed— namely, the convicted servicemember will not be “twice punished for the same offense.” 27 M.J. at 369. The CCA explained this point with concision and clarity: [Pierce confinement credit should] be applied only to the segmented sentence for the offense previ- ously punished under Article 15, UCMJ, and not to the total sentence to confinement when the ac- cused is convicted of other offenses. This ensures an accused is not punished twice for the same of- fense while also ensuring the accused does not re- ceive credit when no credit is due. Whether the military judge determines the sentences to con- finement shall run concurrently or consecutively, the result is the same. The accused receives relief that is effective and meaningful towards the of- fense for which he has already been punished and not towards an offense for which he has not. Leese, 84 M.J. at 752. For these reasons, we answer the granted issue in the affirmative. VI. CONCLUSION The decision of the United States Army Court of Crimi- nal Appeals is affirmed.