UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc
UNITED STATES, Appellee v. Specialist BENNIE B. GOGUE United States Army, Appellant
ARMY 20050650
7th Infantry Division and Fort Carson Donna M. Wright, Military Judge Colonel Kent R. Meyer, Staff Judge Advocate
For Appellant: Lieutenant Colonel Kirsten V.C. Brunson, JA; Major Charles A. Kuhfahl, Jr., JA; Captain Danyele M. Jordan, JA (on brief); Major Fansu Ku, JA; Captain Eugene Ham, JA.
For Appellee: Colonel John W. Miller II, JA; Lieutenant Colonel Michele B. Shields, JA; Major William J. Nelson, JA; Lieutenant Colonel Anthony P. Nicastro, JA, USAR (on brief); Lieutenant Colonel Francis C. Kiley, JA.
18 May 2007
------------------- DECISION -------------------
Per Curiam:
On consideration of the entire record, including those matters personally submitted by appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.*
* Appellant asserts the military judge erred by not awarding him pretrial confine-ment credit for the period civilian authorities confined him, prior to his court-martial, for unrelated state charges. Assuming arguendo 18 U.S.C. § 3585(b)(2) does apply, the Supreme Court has opined that trial judges lack the authority to calculate and apply pretrial confinement credit. United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.”). Based on Wilson, Federal Circuit Courts of Appeals have consistently held district courts lack authority under 18 U.S.C. § 3585(b) to grant pretrial confinement credit. See United States v. Morales-Madera, 352 F.3d 1, 15 (1st Cir. 2003); United States v. Rivers, 329 F.3d 119, 122 (2d Cir. 2003); Ruggiano v. Reish, 307 F.3d 121, 133 (3d Cir. 2002); United States v. Barrera-Saucedo, 385 F.3d 533, 536 (5th Cir. 2004); United States v. Crozier, 259 F.3d 503, 520 (6th Cir. 2001); United States v. Ross, 219 F.3d 592, 594 (7th Cir. 2000); United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006); United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006); United States v. Gonzales, 65 F.3d 814, 822 (10th Cir. 1995); United States v. Williams, 425 F.3d 987, 990 (11th Cir. 2005); see also Virgin Islands v. Rivera, 34 V.I. 98, 101-02 (1996) (consistent with Wilson); but see United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (holding accused entitled to pretrial confinement credit pursuant to 18 U.S.C. § 3568, re- codified at 18 U.S.C. § 3585(b)(1), related to the same offenses for which he is tried and sentenced by court-martial).
Appellant does not now assert any error on the part of the staff judge advocate (SJA) regarding his description of appellant’s clemency matters in the addendum to the post-trial recommendation (SJAR), or claim the SJA presented “new matter” in that document. Furthermore, we find no prejudice flowing from any ostensible errors in the SJAR addendum. Assuming 18 U.S.C. § 3585(b)(2) does apply to soldiers tried by court-martial, applying the holdings in Wilson and its progeny, we find no error occurred at trial. Our superior court has stated: “If there is no error in the first instance at trial, we will not find prejudicial error in the failure of . . . the court below to address the issue.” United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996). The burden appellant bears in asserting post-trial error in the SJAR adden-dum is “‘some colorable showing of possible prejudice.’” United States v. Scalo, 60 M.J. 435, 436-37 (C.A.A.F. 2005) (quoting United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)). Having found no error at trial, we find no prejudicial error in the SJA’s comments on appellant’s assertion of legal error. See Welker, 44 M.J. at 89 (citing UCMJ art. 59(a)). We specifically find the SJA’s use of the word “conviction” in the SJAR addendum does not constitute “new matter” under the facts of this case.
SULLIVAN, Judge, joined by MAHER, Senior Judge, dissenting:
In its summary affirmance, this court has elected to not address appellant’s contention that the military judge erred by not awarding him pretrial confinement credit for the period civilian authorities confined him (prior to his court-martial) based on unrelated state charges. Not only would I address the issue, I find appellant is entitled to confinement credit, albeit not necessarily from the military judge.
A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of failing to go to his appointed place of duty (two specifications), absence without leave (AWOL) (two specifications), willfully disobeying a noncommissioned officer’s lawful order, and wrongfully using controlled substances (twelve specifications), in violation of Articles 86, 91, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, and 912a [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for ten months, forfeiture of $823.00 pay per month for ten months, and reduction to Private E1, and credited appellant with one day of Article 13, UCMJ, credit against his sentence to confinement.
In a single assignment of error, appellate defense counsel assert the military judge erred by not awarding appellant pretrial confinement credit for the period civilian authorities confined him prior to his court-martial based on unrelated state charges. Appellate government counsel respond by arguing that even if appellant were entitled to such credit pursuant to 18 U.S.C. § 3585(b)(2) (“Credit for prior custody”),[1] appellant has failed to show he has not already been granted credit for this time against another state or federal sentence to confinement.
A resolution of the assigned error requires consideration of two questions, both of which appear to be issues of first impression before this court. First, does 18 U.S.C. § 3585(b)(2) apply to a military accused tried by court-martial, thereby affording him credit for civilian pretrial confinement based on charges for which he was not tried by court-martial? Second, if 18 U.S.C. § 3585(b)(2) applies to a military accused, are military trial judges responsible for calculating and applying this credit—credit for lawful civilian pretrial confinement imposed “as a result of any other charge for which [an accused] was arrested after the commission of the offense for which the sentence was imposed [at court- martial, which] . . . has not been credited against another sentence?” 18 U.S.C. § 3585(b)(2) (emphasis added).
In my opinion, 18 U.S.C. § 3585(b)(2) applies to a military accused tried by court-martial, and affords him pretrial confinement credit for such unrelated crimes. I believe that our superior court’s ruling in United States v. Allen, 17 M.J. 126 (C.M.A. 1984), compels such a conclusion. I would, however, follow the consensus of the Federal Circuit Courts of Appeals, and decline to accept appellate counsel’s suggestion to extend the responsibility for calculating and applying § 3585(b)(2) credit, i.e., “unrelated crimes credit,” in every case to military trial judges. That responsibility can more properly be addressed by convening authorities or by confinement facility officials.
FACTS
Background[2]
Between August 2004 and February 2005, appellant repeatedly abused cocaine, marijuana, methamphetamine, and ecstasy. Based on this misconduct, the government charged appellant, inter alia, with twelve specifications alleging wrongful use of these controlled substances. On 31 May 2005, a court-martial tried appellant for his illegal drug use and other military-specific offenses.
Earlier, on 18 January 2005, El Paso County, Colorado, police officers arrested appellant for illegally possessing a controlled substance; appellant was charged only under state law for this particular offense.[3] On 21 January 2005, appellant posted bond securing his release. Appellant, however, failed to appear at a required El Paso County court hearing on 23 February 2005 for his state drug possession charge; this failure to appear caused the issuance of a bench warrant for his arrest.
On 2 March 2005, appellant went AWOL and, at his parents’ behest, on 5 March 2005, voluntarily admitted himself to the Denver Health Medical Center. Appellant’s parents later notified his unit regarding his course of action. Thereafter, on 8 March 2005, officers from the Denver Police Department arrested appellant at the Denver Health psychiatric ward based on the outstanding El Paso County arrest warrant.[4] On or about 14 March 2005, Denver authorities released appellant into the custody of El Paso County law enforcement. Appellant could not post bond and remained confined in El Paso County until 31 May 2005, the date of his court- martial.
Motions at Court-Martial
During an Article 39(a) session before arraignment, the parties agreed appellant’s state failure-to-appear and drug possession offenses were unrelated to the charges and specifications for which appellant was tried by court-martial. Trial counsel acknowledged: (1) the government did not charge appellant with the state offenses; (2) appellant remained in civilian pretrial confinement until 31 May 2005; and (3) appellant’s civilian charges were still pending at the time of court-martial. While trial counsel also agreed appellant was entitled to one day of Article 13 credit, he opposed the defense motion for civilian pretrial confinement credit from 9 March 2005 to 31 May 2005. Trial counsel argued, and the military judge agreed, that the cases upon which the defense relied concerned civilian pretrial confinement credit for civilian offenses for which the accused was subsequently tried by court-martial and sentenced. In denying the defense motion, the military judge concluded:
18 U.S.C. 3585 provides for credit when the accused is detained, “As a result of the offense for which the [court-martial] sentence was imposed.” It is true that detention need not be at the request of the military or even with the military’s knowledge in order for credit to be given. But here, when the detention is for an offense wholly unrelated and not charged by the government, no sentencing credit is warranted.
While the military judge correctly quoted 18 U.S.C. § 3585(b)(1), i.e., “same crimes credit,” she failed to consider 18 U.S.C. § 3585(b)(2), i.e., “unrelated crimes credit,” which trial defense counsel discussed almost exclusively in his written motion for appropriate relief, and argued during the motions hearing.
Post-Court-Martial Confinement
Following court-martial adjournment on 31 May 2005, appellant returned to the El Paso County jail where he remained for several additional weeks awaiting his state trial. On 23 June 2005, an El Paso County trial judge convicted appellant, consistent with his pleas, of illegally possessing a controlled substance, and sentenced appellant to eighteen months of probation without any confinement. After the state trial concluded, appellant returned to the El Paso County jail. On 28 June 2005, El Paso County authorities released appellant to military authorities and, on that same day, appellant entered post-trial confinement at the Fort Lewis Regional Confinement Facility to serve his court-martial sentence. According to appellant’s two sentence computation worksheets filed with this court, appellant received no credit for any of his civilian confinement.
Post-Trial Review
On 18 July 2005, trial defense counsel submitted clemency matters to the convening authority on appellant’s behalf pursuant to Rule for Courts- Martial [hereinafter R.C.M.] 1105. He asserted the military judge made a “serious legal error” at trial by “not crediting [appellant] for the 77 days he served in [civilian pretrial] confinement.” Trial defense counsel also acknowledged the civilian offenses were unrelated to appellant’s court- martial, cited 18 U.S.C. § 3585(b) as the basis for the credit, and stated: “The law is clear: a defendant must be given credit for confinement, even though the confinement is entirely unrelated to the charge for which the defendant is ultimately convicted.” In the 29 July 2005 addendum to the staff judge advocate (SJA) recommendation (SJAR), the SJA disagreed with the assertion of legal error, which he described as follows: “Additionally, the defense counsel alleges that the military judge committed legal error by not ordering that [appellant] receive confinement credit for time served on a civilian conviction. I disagree.” The convening authority granted no confinement credit.
Posture on Appeal
Appellate defense counsel now assert the military judge erred by not awarding appellant “an additional seventy-seven days of pretrial confinement credit, from 9 March 2005 until 31 May 2005,” for the period civilian authorities confined appellant for unrelated state offenses prior to his court-martial.[5] The defense argues: (1) 18 U.S.C. § 3585(b) mandates that appellant receive credit against his court-martial sentence because he “did not receive credit for [civilian pretrial] confinement from any other state or federal jurisdiction;” and (2) the military judge, while considering 18 U.S.C. § 3585(b)(1), “failed to consider paragraph (b)(2),” which relates to credit for any other charge for which appellant was arrested, not sentenced as a result of his court-martial, and for which he has not received credit.
LAW and DISCUSSION
Standard of Review
This court reviews de novo questions of law regarding whether an appellant is entitled to pretrial confinement credit and the proper application of such credit. United States v. Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002); United States v. Smith, 56 M.J. 290, 292 (C.A.A.F. 2002).
Federal Statute
In 1984, Congress passed the Sentencing Reform Act. See Pub. L. No. 98-473, 98 Stat. 1837, 2001 (1984). Codified in part at 18 U.S.C. § 3585(b), and effective in 1987 by operation of law, the statute provides in pertinent part:
A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed;[[6]] or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.[[7]]
Prior to the United States Supreme Court opinion in United States v. Wilson, 503 U.S. 329 (1992) (relieving federal trial judges from the duty of calculating and applying pretrial confinement credit), our superior court, in Allen, 17 M.J. at 126, discussed the applicability of § 3568 to courts-martial and held an accused is entitled to credit for military pretrial confinement related to offenses for which he is tried and sentenced by court-martial. Starting with its 1984 opinion in Allen, our superior court imposed a duty upon trial-level military judges to provide “same offense” pretrial confinement credit to the accused. See, e.g., United States v. Dave, 31 M.J. 940, 942 (A.C.M.R. 1990) (Allen credit for pretrial confinement directed by local civilian authorities); United States v. Huelskamp, 21 M.J. 509 (A.C.M.R. 1985) (Allen credit for pretrial confinement directed by military authorities and implemented in civilian jail); see also United States v. Pinson, 54 M.J. 692, 694-95 (A.F. Ct. Crim. App. 2001) (Allen credit for pretrial confinement directed by a foreign government).
Applicability of 18 U.S.C. § 3585(b)(2) to a Military Accused
The Allen court “interpreted Department of Defense Instruction (DODI) 1325.4 as subjecting the military to the procedures employed by the Department of Justice (DOJ) for sentence computation” despite 18 U.S.C. § 3568’s specific exemption of offenses triable by any military tribunal, including court-martial:
The appellant in Allen argued that “while Congress decided not to make § 3568’s provisions mandatory for the military, the Secretary of Defense ha[d] . . . voluntarily adopted them on the basis of [DODI 1325.4].” Allen, 17 M.J. 127. The Court of Military Appeals agreed and required day-for-day credit for periods of pretrial military confinement.
United States v. DeLeon, 53 M.J. 658, 659-60 (Army Ct. Crim. App. 2000) (alterations in original).
In its 2002 Smith opinion, our superior court discussed its holding in Allen, noting the 1968 version of DODI 1325.4 “was later revised and reissued as DODI 1325.7 (July 17, 2001), without significant change to the provision at issue.” Smith, 56 M.J. at 293.[8] While the court refused to expand the application of lawful pretrial confinement credit where an appellant was not sentenced to confinement, it nevertheless applied the Allen ruling to the successor statute to 18 U.S.C. § 3568: “As written, 18 U.S.C. § 3585(b) and DODI 1325.7 apply . . . to prisoners serving sentences to confinement.” Id. The Smith court, however, did not discuss which authority is initially responsible for calculating and applying § 3585(b) credit. Given the addition of an entirely new category for credit for qualifying unrelated offenses that was not in effect when Allen was decided,[9] the issue of appropriate authority is of some complexity as it requires setting a course consistent both with our superior court’s holding in United States v. Allen, supra, and the Supreme Court’s holding in United States v. Wilson, supra.
Calculation of 18 U.S.C. § 3585(b)(2) Credit
In Wilson, the United States Supreme Court addressed “whether the District Court calculates [pretrial confinement] credit at the time of sentencing or whether the Attorney General computes it after the defendant has begun to serve his sentence.” 503 U.S. at 330. The Court held the Attorney General computes credit pursuant to 18 U.S.C. § 3585(b) after a sentenced prisoner begins serving his sentence to confinement: “Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.” Id.
One sister service court, applying Allen, has granted confinement credit based on 18 U.S.C. § 3585(b)(2) where the state confined appellant for possessing a controlled substance (ecstasy), eventually elected not to prosecute the possession charge, and appellant’s court-martial included distribution of ecstasy in the period immediately preceding his state possession arrest. United States v. Sherman, 56 M.J. 900, 901-02 (A.F. Ct. Crim. App.) (granting five days of pay to compensate appellant for the five days of confinement credit he should have received under 18 U.S.C. § 3585(b)(2)), pet. denied, 57 M.J. 467 (C.A.A.F. 2002).
Since the Supreme Court’s 1992 decision in Wilson, as noted in the majority’s footnote, our colleagues in the federal judiciary have consistently held that district courts lack authority under 18 U.S.C. § 3585(b) to calculate and grant pretrial confinement credit. For example, in United States v. Peters, 470 F.3d 907 (9th Cir. 2006), the Ninth Circuit held:
The district court lacked authority under 18 U.S.C. § 3585(b) to grant Peters credit for the time he had served after his arrest. In [Wilson,] the Supreme Court held that § 3585(b) does not authorize a district court to compute credit for time served. Rather, the prerogative to grant credits in the first instance rests with the Attorney General, acting through the Bureau of Prisons. Further-more, under § 3585’s statutory scheme, credits cannot be calculated until the defendant commences serving his sentence. Following Wilson, we have held that district courts lack authority at sentencing to give credit for time served. [United States v.] Lualemaga, 280 F.3d [1260,] 1265 [(9th Cir. 2002)] (“The initial calculation [of credit for time served] must be made by the Attorney General acting through the Bureau of Prisons.”).
Id. at 909 (internal footnote and citations omitted) (last alteration in original).
Military trial judges are in no better position than their federal civilian counterparts to determine the appropriate amount of unrelated crimes credit to be given an accused when unrelated state offenses are pending adjudication. A grant of pretrial confinement credit pursuant to our superior court’s opinion in Allen, its progeny, and § 3585(b)(1), i.e., “same crimes credit,” rests upon circumstances often markedly different than those which a military judge faces when an accused requests § 3585(b)(2) “unrelated crimes credit.” When military judges grant Allen credit based on civilian pretrial confinement for a state offense for which the accused is being tried by court-martial, the civilian pretrial confinement period is necessarily defined. Generally speaking, although technically separate sovereigns, both state and military (federal) authorities do not usually subject an accused to criminal proceedings for the same offense. See, e.g., Army Reg. 27-10, Legal Services: Military Justice, para. 4-2 (16 Nov. 2005) (“A person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not, be tried by court-martial or punished under the UCMJ, Art.15, for the same act over which the civilian court has exercised jurisdiction.”). State authorities generally agree not to prosecute the military accused for his state offenses, and release him from state custody to military control. Thus, an accused’s court-martial for the “same crime” generally acts as a de facto termination of state criminal proceedings. After obtaining the commencement and termination dates for civilian pretrial confinement—dates obtained before the trial by court-martial begins—the parties know exactly how long the state officially detained the accused, and can convey this information to the military judge. The same, however, cannot always be said when credit is based on unrelated crimes.
State governments, i.e., non-military sovereigns, have exclusive control over their own civilian criminal processes. They impose civilian pretrial confinement, set the amount and terms of bail, and schedule their own trial dates. Military trial judges are not automatically privy to this information, and in most instances do not know an accused is facing unrelated state charges for which he has been placed in civilian pretrial confinement. Where the Rules for Courts-Martial and Military Rules of Evidence permit, the parties may raise these matters in extenuation or mitigation, in aggravation, or as evidence supporting a potential sentence credit. See, e.g., R.C.M. 1001(b)(1)–(4) and 1001(c)(1)–(3). Absent such a showing at court-martial, unrelated crimes, civilian pretrial confinement based upon them, and any sentence imposed by a non-military sovereign do not play a role at court-martial.
Arguably, where an accused raises unrelated crimes matters, a military judge could grant credit for time the accused has spent in civilian pretrial confinement prior to court-martial. However appealing that option might be, it remains untenable unless, prior to court-martial, an accused has been convicted and sentenced in state court and released from state confinement. First, as in the instant case, an accused may be returned to civilian pretrial confinement after his trial by court-martial pending adjudication of his state offenses. An accused who receives partial credit for the civilian pretrial confinement period known at the time of court-martial risks losing credit against his military sentence to confinement for any continued civilian confinement imposed after the court- martial adjourns. In most cases, as here, military judges will not know an accused has been returned to state custody for state criminal proceedings, and will not know the length of any continued state confinement. In this case, appellant remained in state confinement for approximately one month, of which we may presume the military judge had no knowledge. Moreover, military judges cannot speculate about the length of continued civilian confinement, or grant anticipatory credit. Such decisions would be arbitrary and capricious.
Second, and more important, the Court in Wilson, 503 U.S. at 333, stated: “Congress has indicated that computation of the credit must occur after the defendant begins his sentence. A district court, therefore, cannot apply § 3585(b) at sentencing.” (Emphasis added.) A military accused begins serving his sentence to confinement after his court-martial adjourns. In harmony with Wilson, R.C.M. 1113(d) provides in pertinent part:
(2) Confinement.
(A) Effective date of confinement. Any period of confinement included in the sentence of a court-martial begins to run from the date the sentence is adjudged by the court- martial, but the following shall be excluded in computing the service of the term of confinement:
. . . .
(ii) Periods during which the accused is in custody of civilian authorities under Article 14 from the time of the delivery to the return to military custody, if the accused was convicted in the civilian court.
Therefore, if a military judge grants partial credit for known civilian pretrial confinement time, he acts prematurely and contrary to Congress’ statutory mandate. Under Wilson and R.C.M. 1113 (d)(2)(A)(ii), appellant’s military sentence appears to have run from 28 June 2005, the date he was returned to military control, not from 31 May 2005, the date the court- martial sentenced him to confinement.
Third, a military judge risks fostering a violation of § 3585(b) by granting premature partial pretrial confinement credit. If a state trial judge sentences an accused to confinement for his unrelated state offenses, that judge may also grant the accused the civilian pretrial confinement credit already applied against his military sentence to confinement. A grant of partial civilian pretrial confinement credit at court-martial potentially allows a grant of double credit, an unintended—and prohibited—consequence that military judges must avoid.
As the facts in this case illustrate, after appellant’s court-martial adjourned on 31 May 2005, he was convicted in state court for drug possession, sentenced to no confinement, and returned to civilian confinement until he was transferred to the Fort Lewis Regional Confinement Facility on 28 June 2005. Although the parties told the military judge appellant spent time in civilian pretrial confinement before his court- martial began, they could not have calculated any post-court-martial civilian confinement time, or determined the state sentence. Since appellant was sentenced in state court almost one month after his court- martial adjourned, the military judge could not have known the state sentence, or whether (and to what extent) it was offset by civilian pretrial confinement credit.
Thus, I would require that an accused seeking unrelated crimes credit under 18 U.S.C. § 3585(b)(2) provide to the convening authority in his clemency submission under R.C.M. 1105 or to the confinement facility commander the following adequately-supported information, at a minimum: (1) he was in official detention during the period claimed; (2) the official detention resulted from an offense the accused committed after he committed the offense for which he was tried and sentenced by court- martial; (3) he was not tried by court-martial for the subsequent, unrelated offense; and (4) the period claimed has not been credited against another sentence.
SJAR Error
I see one final issue in this case. In the SJAR addendum, the SJA informed the convening authority that trial defense counsel alleged “the military judge committed legal error by not ordering that [appellant] receive confinement credit for time served on a civilian conviction.” (Emphasis added.) This language can be read in one of two ways. First, it may be interpreted as the SJA’s misunderstanding of the asserted legal error. The defense was seeking pretrial confinement credit for time appellant spent in civilian confinement before his state trial, not civilian post-trial confinement credit resulting from a state conviction. Interpreted this way, the SJA’s statement mischaracterized the asserted legal error and provided inaccurate—and potentially prejudicial—advice to the convening authority. While R.C.M. 1106 (d)(4) does not require the SJA to discuss an assertion of legal error, see United States v. Broussard, 35 M.J. 665, 671 (A.C.M.R. 1992), when the SJA summarizes rather than references the alleged error, the summary should be correct. Although the SJAR addendum “disagrees” that there was legal error, it disagrees with an error different from the one actually asserted. When the SJAR addendum fails to respond to a potentially meritorious assertion of legal error, the SJA commits error requiring relief if an “appellate court . . . determine[s] . . . the accused has been prejudiced.” United States v. Hill, 27 M.J. 293, 296 (C.M.A. 1988); see United States v. Welker, 44 M.J. 85, 88-89 (C.A.A.F. 1996) (reaffirming Hill).
Alternatively, the SJAR addendum may be interpreted as intentionally referring to appellant’s state drug conviction because appellant was convicted of this offense after his court-martial, but before initial action by the convening authority. Interpreted this way, the SJA’s statement constituted “new matter,” which required service upon appellant for comment because appellant’s state conviction was matter from outside the record of trial, not previously discussed, and not included in the defense clemency submission. See R.C.M. 1106(f)(7) and discussion. Failure to serve new matter on the defense requires remand for a new recommendation and action. See, e.g., United States v. Harris, 43 M.J. 652, 653-54 (Army Ct. Crim. App. 1995) (mention of nonjudicial punishment for the first time in addendum required service on defense counsel for comment). Because the SJA’s statement in the SJAR addendum is susceptible to more than one interpretation, I would return the record for a new R.C.M. 1106 recommendation and action by the convening authority.
CONCLUSION
In conclusion, I find appellant is entitled to confinement credit, albeit not necessarily from the military judge. In future cases, I would require an accused seeking unrelated crimes credit under 18 U.S.C. § 3585(b)(2) to request such credit from the convening authority or the confinement facility commander. Appellant’s case should be sent back to The Judge Advocate General for return to the convening authority for a new recommendation and action.
FOR THE COURT:
MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] 18 U.S.C. § 3585 provides in pertinent part for sentence credit for time “spent in official detention prior to the date the sentence commences (1) as a result of the offense for which the sentence was imposed, or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.” [2] The record of trial developed below poorly delineates the circumstances surrounding appellant’s civilian confinement; the record was supplemented at the court’s request by appellate pleadings, an affidavit and supporting documents filed by the government, and matters subsequently filed by the defense pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
[3] Appellant committed this state offense after he committed most of the military offenses for which he was convicted and sentenced by the instant court-martial.
[4] In Specification 2 of Additional Charge I, the government charged appellant with an AWOL period that began “on or about 2 March 2005,” and ended “on or about 9 March 2005,” the time of this civilian arrest. [5] This appears to be an undercount. Appellant spent 18–21 January 2005 (four days) and from 8 March 2005 to 31 May 2005 (eighty-five days) in civilian pretrial confinement preceding his trial by court-martial. Further, as noted above, after the court-martial adjourned but before he began serving his court-martial sentence, appellant returned to the El Paso County jail pending his state trial and spent 1–23 June 2005 in civilian confinement pertaining to his unrelated state offenses and 23–28 June 2005 in state confinement pending transportation to the military confinement facility to begin serving his court-martial sentence. [6] Section 3585(b)(1) reiterates the language found in 18 U.S.C. § 3568. See Act of June 22, 1966, Pub. L. No. 89-465, § 4, 80 Stat. 214, 217 (Bail Reform Act repealed in 1984 upon the enactment of § 3585).
[7] See generally Jonah v. Carmona, 446 F.3d 1000, 1003-04 (9th Cir. 2006) (discus-sing predecessor statutes and history of 18 U.S.C. § 3585). [8] Dep’t of Def. Instr. 1325.7, Administration of Military Correctional Facilities and Clemency and Parole Authority, para. 6.3.1.5 (17 July 2001) (C1, 10 June 2003) states in pertinent part: “Procedures used to compute sentences shall conform to those established by the Department of Justice for Federal prisoners unless they conflict with this Instruction . . . or existing Service regulations.” Our existing service regulation, Army Reg. 633-30, Apprehensions and Confinement: Military Sentences to Confinement, para 4a. (28 Feb. 1989), addresses only the situation where the offenses are related: “If a prisoner served pretrial confinement for the offense(s) or act(s) for which the sentence was imposed, the beginning date will be administratively adjusted to reflect the time spent in pretrial confinement and any additional pretrial confinement credit ordered by the military judge, convening authority[,] or appellate court.” I do not read its silence on the specific issue of confinement for unrelated offenses by a separate sovereign as a conflict which allows us to ignore the exhortation of DODI 1325.7.
[9] When Congress enacted 18 U.S.C. § 3585(b), the statute afforded defendants two types of pretrial confinement credit:
Under the old law, a defendant could receive credit only for time spent in custody in connection with “the offense . . . for which sentence was imposed.” Under [18 U.S.C. § 3585(b)], a defendant may receive credit both for this time and for time spent in official detention in connection with “any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.”
Wilson, 503 U.S. at 337 (first alteration in original); see also note 6 and 7, supra.