United States v. Mancini

• Court: United States Air Force Court of Criminal Appeals
• Decided: October 16, 2018
• Docket: ACM 38783 (Reh)
• Status: Unpublished

Opinion

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________

No. ACM 38783 (reh) ________________________

UNITED STATES Appellee v. Marcus A. MANCINI Senior Airman (E-4), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 16 October 2018 ________________________

Military Judge: Vance H. Spath. Approved sentence: Dishonorable discharge, confinement for 6 years and 11 months, forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 22 June 2017 by GCM convened at Beale Air Force Base, California. For Appellant: Major Annie W. Morgan, USAF. For Appellee: Major J. Ronald Steelman III, USAF; Mary Ellen Payne, Esquire. Before MAYBERRY, HARDING and MINK, Appellate Military Judges. Chief Judge MAYBERRY delivered the opinion of the court, in which Senior Judge HARDING and Judge MINK joined. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4 ________________________

MAYBERRY, Chief Judge: Originally Appellant was found guilty, contrary to his pleas, by officer members of three specifications of sexual assault, two specifications of abu- sive sexual contact, one specification of indecent visual recording, and one United States v. Mancini, No. ACM 38783 (reh)

specification of assault consummated by a battery in violation of Articles 120, 120(c), and 128, 10 U.S.C. §§ 920, 920(c), 928. 1 These offenses involved three victims, Senior Airman (SrA) CC, Ms. AE, and Ms. BM. Appellant was sen- tenced to a dishonorable discharge, confinement for seven years, forfeiture of all pay and allowances, and reduction to E-1. On appeal, we affirmed the findings as to the offenses involving SrA CC and Ms. BM. Pursuant to United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), we set aside the findings of guilt of the Additional Charge and its two specifications (one specification each of sexual assault and abusive sexual contact) involving Ms. AE, returned the record of trial to The Judge Advocate General (TJAG), and authorized a re- hearing as to the set aside findings of guilt and as to the sentence. United States v. Mancini, No. ACM 38783, 2016 CCA LEXIS 660 (A.F. Ct. Crim. App. 7 Nov. 2016) (unpub. op.). All of the original charges were re-referred to a general court-martial for findings on the Additional Charge and its Specifications and an appropriate sentence. Later, the Additional Charge and its Specifications were withdrawn and dismissed without prejudice because Ms. AE declined to participate in the proceedings. A rehearing on sentence was held on 22 June 2017. Appel- lant was sentenced by a panel of officer and enlisted members to a dishonor- able discharge, confinement for nine years, forfeiture of all pay and allowanc- es, and reduction to E-1. The convening authority (CA) approved only so much of the sentence as provided for a dishonorable discharge, confinement for six years and 11 months, forfeiture of all pay and allowances, and reduc- tion to E-1. Appellant now asserts two assignments of error: (1) this court is preclud- ed from conducting a review pursuant to Article 66(c), UCMJ, 10 U.S.C. §866(c), of Specifications 1–3 of Charge I because the findings are ambiguous, and (2) Appellant is entitled to additional confinement credit. We affirm the findings but grant relief regarding confinement credit.

I. BACKGROUND Our original opinion was issued on 7 November 2016. The Government did not seek certification at the Court of Appeals for the Armed Forces

1 Appellant was found not guilty of two specifications of sexual assault and one speci- fication of assault consummated by a battery, in violation of Articles 120 and 128, UCMJ.

2 United States v. Mancini, No. ACM 38783 (reh)

(CAAF). 2 On 9 January 2017, TJAG returned the case to the CA for a rehear- ing. On 10 January 2017, Appellant requested a continued confinement hear- ing. On 18 January 2017, the CA ordered a continued confinement hearing pursuant to Rule for Courts-Martial (R.C.M.) 305. On 28 January 2017, the charges involving Ms. AE were re-preferred, and, on 15 February 2017, all charges were re-referred. A confinement hearing was held on 24 February 2017, and the hearing of- ficer determined Appellant should remain in confinement pending trial. On 10 March 2017, a confinement order reflecting this decision was sent to the Navy Brig in Miramar, California, where Appellant was being held. Brig per- sonnel indicated that this order constituted placement into pretrial confine- ment status, and therefore the procedures of R.C.M. 305 required another hearing within seven days. Although Air Force legal office personnel disa- greed, another hearing was held on 17 March 2017. The second hearing of- ficer ordered Appellant to be released from confinement. Appellant was re- leased on 20 March 2017 and arrived at Beale Air Force Base on 21 March 2017. At the sentence rehearing, Appellant received 886 days of confinement credit. 3 At trial, Appellant filed a motion for illegal pretrial punishment for the time he spent in confinement after this court’s decision on 7 November 2016 until he was released on 20 March 2017. 4 Appellant asserted that this was a violation of Article 13, UCMJ, 10 U.S.C. § 813, and cited United States v. Kruetzer, 70 M.J. 444 (C.A.A.F. 2012), United States v. Combs, 47 M.J. 330 (C.A.A.F. 1997), and United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), for that premise. The Government opposed the motion. First, the Government asserted Appellant was not entitled to a continued confinement hearing; therefore, he was not entitled to additional confinement credit under R.C.M. 305. Alternatively, the Government argued that, if Appellant was entitled to a continued confinement hearing, the Government acted in compliance with the law, citing Kruetzer, Miller, and United States v. Katso (Katso III), 76

2Appellant did seek review at the CAAF, but his petition was ultimately dismissed without prejudice for lack of jurisdiction. U.S. v. Mancini, 76 M.J. 172 (C.A.A.F. 2017) (mem.). 3 This included 17–20 March 2017. 4 Appellant also argued that an order issued by his commander on 6 June 2017 mak- ing his off-base residence his place of duty and requiring Appellant to give 24 hours’ notice to come on base for any reason amounted to illegal pretrial confinement or punishment. The military judge denied the motion and Appellant does not assert this as error on appeal.

3 United States v. Mancini, No. ACM 38783 (reh)

M.J. 704 (A.F. Ct. Crim. App. 2017) (unpub. op.), aff’d in part, rev’d in part, United States v. Katso (Katso IV), 77 M.J. 247 (C.A.A.F. 2018), for that prem- ise. 5 The military judge denied the motion for illegal pretrial confinement. On appeal, Appellant relies on United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016), and requests that we exercise our Article 66(c), UCMJ, au- thority to grant sentence relief due to a “legal deficiency in the post-trial pro- cess.” The Government proffers a series of reasons as to why Appellant is en- titled to no additional confinement credit.

II. DISCUSSION A. Ambiguous Findings 1. Law With minor exceptions for capital cases, a “court-martial panel, like a ci- vilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit.” United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997) (footnote omitted). In returning such a general verdict, a court-martial panel re- solves the issue presented to it: did the accused commit the of- fense charged, or a valid lesser included offense, beyond a rea- sonable doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt. United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (citing Griffin v. United States, 502 U.S. 46, 49–51 (1991)); see Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) (“We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.”).

5 In United States v. Katso (Katso I), 73 M.J. 630 (A.F. Ct. Crim. App. 2014), this court set aside the findings and sentence. In United States v. Katso (Katso II), 74 M.J. 273 (C.A.A.F. 2015), the CAAF reversed our decision in Katso I and remanded the case to this court for further proceedings under Article 66, UCMJ. As will be dis- cussed supra, Katso III and Katso IV address the applicability of Article 13 and R.C.M. 305 to confinement review hearings when the case is pending appellate re- view at the CAAF.

4 United States v. Mancini, No. ACM 38783 (reh)

Article 66(c), UCMJ, requires this court to affirm only such findings of guilty and the sentence or such part or amount of the sentence as it finds cor- rect in law. “[W]e apply the clear law at the time of appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citing Unit- ed States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008)). 2. Additional Facts Appellant was originally charged, inter alia, with two specifications of sexual assault and one specification of abusive sexual contact involving SrA CC. 6 The offenses were alleged to have occurred when Appellant knew or should have known that SrA CC was asleep, unconscious, or otherwise una- ware the sexual act/abusive contact was occurring. This court affirmed the guilty findings on these offenses. At the original trial and upon initial appel- late review, Appellant did not raise a claim as to ambiguous findings. At the sentence rehearing, Appellant “preserved for the record a general objection,” citing to United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017). 3. Analysis Shortly after we remanded this case, our superior court issued its decision in Sager, addressing the viability of affirming Article 120, UCMJ, offenses charged in the disjunctive, specifically, “asleep, unconscious, or otherwise un- aware.” The CAAF remanded the case to the Navy-Marine Corps Court of Criminal Appeals for further factual sufficiency review. The CAAF’s decision in Sager was based on its finding that the military judge gave an erroneous instruction requiring the members to specifically identify the theory upon which they convicted and not on the mere fact that the Government charged disjunctive theories of liability. Assuming without deciding that this issue is properly before us, the facts of this case can be distinguished from those in Sager. Although the three specifications alleging sexual assault or abusive contact of SrA CC contained the same disjunctive language as in Sager, this case, unlike Sager, did not involve an erroneous instruction by the military judge requiring the members to vote individually as to the separate theories of liability. Sager does not in any way affect our earlier assessment regarding the findings of guilty on Specifications 1–3 of Charge I and Charge I and we adopt those findings here. We could and did exercise our full authority under Article 66(c), UCMJ, and affirmed the findings of guilty on Specifications 1–3 of Charge I and Charge I, finding them legally and factually sufficient. We again conclude the findings

6 This was Charge I, Specifications 1 through 3.

5 United States v. Mancini, No. ACM 38783 (reh)

of guilty as to Specifications 1–3 of Charge I and Charge I are legally and fac- tually sufficient. B. Confinement Credit 1. Law “No 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 rig- orous than the circumstances required to insure his presence . . . .” Article 13, UCMJ. An individual may be ordered into pretrial confinement when “(1) An of- fense triable by court-martial has been committed; (2) The person confined committed it; and (3) Confinement is required by the circumstances.” R.C.M. 305(d). In R.C.M. 305(f), (h), (i), and (j), the President established a set of proce- dural rules for the imposition and review of pretrial confinement. See Manual for Courts-Martial, United States (2016 ed.), App. 21, at A21–17 to A21–21. To ensure the procedural rules are followed, the President ordered that an accused be granted day-for-day credit for noncompliance. R.C.M. 305(k). Pretrial confinement may be “necessary because it is foreseeable that: (a) the prisoner will not appear at trial, pretrial hearing, or investigation, or (b) the prisoner will engage in serious criminal misconduct,” and a lesser form “of restraint” would be "inadequate.” R.C.M. 305(h)(2)(B)(iii) and (iv). TJAG “shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Su- preme Court, instruct the [CA] to take action in accordance with the decision of the Court of Criminal Appeals.” Article 66(e), UCMJ. If TJAG immediately decides not to pursue a case any further, there must be immediate notice to the CA of the opinion of the Court of Criminal Appeals and “immediate direc- tion to release an accused or conduct a hearing under RCM 305 . . . on pretri- al confinement.” Miller, 47 M.J. at 361 (citations omitted). 2. Additional Facts The following timeline is essential to resolving the issue of confinement credit: 7 November 2016 This court issues opinion setting aside the find- ings of guilt as to the Additional Charge and its Specifications and the sentence. 9 January 2017 TJAG remands the case to the CA for rehearing as to findings and sentence or only sentence.

6 United States v. Mancini, No. ACM 38783 (reh)

10 January 2017 Appellant’s appellate defense counsel requests a confinement hearing. 18 January 2017 CA orders a rehearing on the findings and sen- tence and orders an R.C.M. 305 hearing. 27 January 2017 Trial defense counsel detailed to Appellant. 6 February 2017 Pretrial confinement hearing scheduled. 15 February 2017 Additional Charge re-referred to trial. 24 February 2017 Confinement hearing held, Appellant ordered to remain confined. 10 March 2017 Confinement order produced and provided to Miramar Brig. 14 March 2017 Brig personnel inform legal office that a hearing was necessary under RCM 305 to determine if continued pre-trial confinement is warranted and they would need the 48 hour and 72 hour letters. 17 March 2017 Second confinement hearing held; Appellant or- dered to be released from confinement. 20 March 2017 Release order signed and sent to Brig. Appellant released. 21 March 2017 Appellant arrives at Beale Air Force Base. 3. Analysis When Appellant’s case was returned to the CA on 9 January 2017, our de- cision setting aside the findings as to the Additional Charge and its Specifica- tions and the sentence was no longer inchoate. Consequently, Appellant was no longer an adjudged prisoner and any decision to confine him was subject to R.C.M. 305. See Miller, 47 M.J. at 361; cf. Katso IV, 77 M.J. 247; Kruetzer, 70 M.J. 444; Moore v. Akins, 30 M.J. 249 (C.A.A.F 1990). Katso III and IV address an appellant’s right to review of continued con- finement when a case is pending appellate review at the CAAF. After our de- cision in Katso I reversing the findings and sentence, Katso remained con- fined. Almost a year after the CAAF certified the Government appeal but be- fore issuing Katso II, Katso requested review of his continued confinement. The review was held and the reviewing officer determined Katso should re- main in confinement because it was foreseeable that he was a flight risk and would engage in other serious misconduct, and less severe forms of restraint were inadequate. When the case was remanded to us pursuant to the decision in Katso II, Katso asserted that he was entitled to day-for-day sentence relief

7 United States v. Mancini, No. ACM 38783 (reh)

for procedural errors under R.C.M. 305 relating to his confinement pending resolution of the Government appeal. We held that a continued confinement hearing was required within seven days of TJAG certification 7 and awarded Katso with 365 days of credit. Katso III, 76 M.J. at 706. In Katso IV, the CAAF reversed this court’s granting of 365 days of administrative credit holding that Katso was not in pretrial confinement. The CAAF went on to state that Article 57a, UCMJ, 10 U.S.C. § 857a, not R.C.M. 305, is controlling. Article 57a(c), UCMJ, states, In any case in which a court-martial sentences a person to con- finement and the sentence to confinement has been ordered ex- ecuted, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary con- cerned may defer further service of sentence to confinement while that review is pending. 8 In Miller, the CAAF held that when TJAG returns a case to the CA with- out seeking review at the CAAF, there must be immediate direction to re- lease an accused or conduct a hearing under R.C.M. 305 on pretrial confine- ment. Miller, 47 M.J. at 362 (citations omitted). The Katso IV decision held that Miller was not controlling, pointing out the fact that although Miller was decided after Article 57a, UCMJ, was enacted, it “failed to address Article 57a, UCMJ, let alone its statutory primacy on the question of deferral of sen- tence, including confinement” during a pending appeal pursuant to Article 67. Furthermore, CAAF did not say R.C.M. 305 did not apply, it simply went on to state that Miller did not purport to hold that all the procedures and penalties contained within R.C.M. 305 traveled along with “a R.C.M. 305- styled continued confinement hearing.” 77 M.J. at 251. Again, the focus here was to minimize the applicability of R.C.M. 305 on continued confinement hearings. This distinction was lost on the Government counsel at trial and on appeal as well as the military judge. Article 57a, UCMJ, does not apply in Appellant’s case because no certifi- cation to the CAAF occurred. See United States v. Saintaude, ARMY 9801647,

7 We applied the holdings in Moore, Miller and R.C.M. 305(i)(2). 8The CAAF held that the language of Article 57a is broad enough to permit a contin- ued confinement hearing so that the relevant Secretary can determine whether to release the prisoner in accordance with Article 57a(c) 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 statute to address these questions. Katso IV, 77 M.J. at 251.

8 United States v. Mancini, No. ACM 38783 (reh)

2003 CCA LEXIS 418 (A. Ct. Crim. App. 15 Oct. 2003) (unpub. op.) (holding that pretrial confinement is subject to review as an Article 13, UCMJ, viola- tion where a case is sent back for sentence rehearing and Appellant is con- fined pending that rehearing). While the military judge found Appellant’s case “much more like Kruetzer than Miller,” we disagree. First, in Kruetzer, after the Army CCA set aside all of the contested findings and the death sentence, the Government appealed to the CAAF pursuant to Article 67, UCMJ, 10 U.S.C. § 867. There was no Gov- ernment appeal in Appellant’s case. Second, as the dissent in Kruetzer cor- rectly pointed out, it was “important to note what this case is not about. It is not about whether Kruetzer should have been released from confinement af- ter the CCA set aside his convictions for the contested findings . . . and the sentence. Kruetzer . . . only requested he be transferred from death row . . . .” Kruetzer, 70 M.J. at 449 n.3. The CAAF decision in Kruetzer is primarily focused on Article 13, UCMJ, not R.C.M. 305. The Kruetzer majority held that Article 13, UCMJ, only ap- plies to persons “held for trial,” 70 M.J. 447 (footnote omitted), and relied on United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003), to establish that “held for trial” ends after guilt is established at trial. Unlike Article 13, UCMJ, R.C.M. 305(a) clearly states that pretrial confinement is imposed “pending disposition of charges.” If the Kruetzer holding is not limited to an analysis of Article 13, it directly contradicts the holding in United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996), where the CAAF upheld the trial judge’s decision to grant two-for-one illegal pretrial confinement credit for the time Tilghman was confined between the announcement of findings and the announcement of sentence because the Government ignored the trial judge’s decision that pretrial confinement was not warranted after Tilghman had been convicted but not yet sentenced. Tilghman 44 M.J. at 495 (emphasis added). 9

9 Additionally, in United States v. Simoy, 50 M.J. 1 (C.A.A.F. 1998), the CAAF af- firmed this court’s original decision as to the findings but reversed as to the sentence. On further review, this court addressed Simoy’s allegation that the military judge erred by failing to grant relief for illegal pretrial confinement with regard to his con- finement between the CAAF’s decision and the sentence rehearing. This court held there had been no “disposition” of the charged offenses, found Simoy’s trial was not complete, and determined his continued restraint from the time of the CAAF’s man- date until sentence announcement was pretrial confinement. United States v. Simoy, ACM 30496, 2000 CCA LEXIS 183, at *3–5 (A.F. Ct. Crim. App. 2000) (unpub. op.).

9 United States v. Mancini, No. ACM 38783 (reh)

These distinctions are significant regarding the applicability of R.C.M. 305 and Article 13, UCMJ. The military judge’s mistaken use of the holding in Kruetzer thereby excluding any application of R.C.M. 305 in this case and his subsequent denial of illegal pretrial confinement credit was an abuse of discretion. Article 66(e), UCMJ, requires the CA to take action in accordance with the decision of the CCA when no further review is pending. The Government acknowledges that Article 66(e), UCMJ, controls but asserts that Kruetzer stands for the proposition that an appellant who remains convicted of an of- fense but is facing a rehearing is not a pretrial confinee and therefore not en- titled to the protections of R.C.M. 305 and Article 13, UCMJ. For the reasons stated above, the Government’s interpretation of Kruetzer is erroneous. When there was no further review pending in Appellant’s case and it was remanded to the CA, there was no longer an inchoate appellate decision, so Appellant, while still convicted, had not yet been sentenced. Lawful confinement at this stage would be pursuant to being held for trial and therefore subject to Arti- cle 13, UCMJ, and R.C.M. 305. The fact that Appellant remained convicted of some offenses did not independently justify his confinement pending a re- hearing pursuant to the remand. While his affirmed convictions would pro- vide evidence that he had committed offenses triable under the UCMJ, that evidence only satisfies two of the three requirements for pretrial confinement under R.C.M. 305(h)(2)(B). There must also be a finding that confinement is necessary because it is foreseeable that Appellant would not appear for trial or that Appellant would engage in serious criminal misconduct and that less severe forms of restraint are inadequate. After Appellant’s case was remanded by TJAG, the CA’s Staff Judge Ad- vocate advised the CA that [he] must either order [Appellant’s] release from confinement or order a hearing under Rule for Courts-Martial (R.C.M.) 305 to determine whether [Appellant] remains in confinement . . . and [he] may order a rehearing [on the findings that were set aside and the sentence] or, if a rehearing is impracticable, a supplementary court-martial order must be submitted. Nine days later, on 18 January 2018, the CA ordered both a rehearing on the set-aside findings and a confinement hearing pursuant to R.C.M. 305. In this case, the Government alternatively asserts that, even if a con- finement hearing was required, much of the delay before the confinement hearing was attributable to the Defense. While we agree, that does not ne- gate the delay attributable to the Government. On 18 January 2017, the CA ordered both a rehearing and a confinement hearing. The Government was

10 United States v. Mancini, No. ACM 38783 (reh)

taking the necessary steps to bring Appellant to trial, and therefore the onus was on the Government to ensure Appellant was represented. Trial counsel’s actions to contact Appellant’s appellate counsel were misdirected and result- ed in a delay of nine days before trial defense counsel was appointed. As such, the Government failed to ensure Appellant was represented by appropriate counsel in a timely fashion. See R.C.M. 305(f). The issue that permeates the remaining confinement actions is the trial legal office’s consideration of the confinement hearing as a continued con- finement hearing, not a pretrial confinement hearing pursuant to R.C.M. 305. This is evidenced by the delay in producing the confinement order, which was not completed until 14 days after the hearing. Upon receipt of the order, the confinement facility inexplicably treated 13 March 2017 as the “first day of pretrial confinement” and informed the trial legal office that another hearing was necessary under R.C.M. 305 to determine if continued pre-trial confine- ment is warranted; the hearing needed to occur within seven days; and they would “need the 48 hour and 72 hour letters.” Despite the fact that the trial legal office did not agree with the view that Appellant was in pretrial con- finement as opposed to continued confinement, a second hearing was held on 17 March 2017 at which time the reviewing officer found Appellant did not need to remain in confinement. However, Appellant was not released from confinement until 20 March 2017 when the trial legal office was able to iden- tify the commander who could sign the required release order. The CA’s 18 January 2017 order to conduct a confinement hearing is enti- tled “R.C.M. 305 Hearing,” yet goes on to say, “Since the [Appellant] is in con- finement, I direct that a hearing on continued confinement be conducted un- der Rule for Courts-Martial (R.C.M.) 305.” The first hearing officer’s report is entitled “Pretrial Confinement Hearing.” The second hearing officer uses the same 18 January 2017 order but indicates the hearing was conducted “in ac- cordance with [R.C.M.] 305 and the court decision in US v. Katso.” The Gov- ernment’s brief on appeal repeatedly relies on the notion that Appellant was not entitled to a continued confinement hearing. We agree with regards to the Katso IV-defined continued confinement hearing. However, Appellant was entitled to a pretrial confinement review hearing pursuant to R.C.M. 305(i)(2), required to be held within seven days of the imposition of confine- ment. The Government argues that Appellant’s claim for additional confinement credit is moot and that, if there was any error associated with the confine- ment hearings, Appellant was not prejudiced because the sentence adjudged

11 United States v. Mancini, No. ACM 38783 (reh)

at the rehearing exceeded the amount of time he had spent in confinement. Again, this analysis misses the point. There is no question that Appellant was entitled to credit for the entire time he spent in confinement. 10 The issue is whether he was entitled to additional credit for illegal pretrial confinement and, if so, for what period of time. TJAG returned the case to the CA on 9 January 2017. Nine days later, the CA ordered the confinement hearing. Defense counsel was appointed af- ter another nine days, and, ten days later on 6 February 2017, defense coun- sel agreed to a hearing to be held on 24 February 2017. Pretrial confinement started on 9 January 2017. There was no 48-hour probable cause determina- tion or 72-hour review pursuant to R.C.M. 305(h)(2)(A) and (i)(1). While there was a review of continued pretrial confinement after the hearing on 24 Feb- ruary 2017, it was not done until 17 March 2017, 21 days after the determi- nation to keep Appellant confined—not in compliance with the seven-day re- view mandated by R.C.M. 305(i)(2). Because the Government did not consider this a pretrial confinement hearing, there was no urgency to satisfy the re- quirements of R.C.M. 305(h) and (i). We hold the Government responsible for the delay between 10 January 2017 and 6 February 2017. We hold the De- fense responsible for the delay between 6–24 February. Pursuant to R.C.M. 305(k), the appropriate remedy for noncompliance with subsections (h) and (i) is administrative day-for-day credit. As such, Appellant is entitled to illegal pretrial confinement credit of 49 days, and the CA shall so direct in the final action.

III. CONCLUSION The approved findings and sentence are correct in law and fact and no er- ror materially prejudicial to the substantial rights of Appellant occurred. Ar- ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

10 United States v. Allen, 17 M.J. 126 (C.M.A. 1984).

12 United States v. Mancini, No. ACM 38783 (reh)

Accordingly, the approved findings and sentence are AFFIRMED. 11

FOR THE COURT

CAROL K. JOYCE Clerk of the Court

11We note the court-martial order does not include that the case was heard by officer and enlisted members. We direct the publication of a corrected court-martial order.