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United States v. Mosby

UNITED STATES, Appellee, v. Trevis D. MOSBY, Specialist, U.S. Army, Appellant

United States v. Mosby, 56 M.J. 309 (C.A.A.F. 2002)
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Court
Court of Appeals for the Armed Forces · Military Courts
Decided
February 15, 2002
Docket
No. 01-0304/AR
Judges
Crawford, Gierke, Baker, Sullivan, Effron
Citations
56 M.J. 3092002 CAAF LEXIS 1542002 WL 232894

Opinion of the Court — Crawford

Chief Judge CRAWFORD

delivered the opinion of the Court.

Appellant was convicted, pursuant to his pleas, by a military judge of the involuntary manslaughter of his five-week old son, in violation of Article 119, Uniform Code of Military Justice, 10 USC § 919 . Based on a pretrial agreement, a murder charge, as well as three specifications and a charge of aggravated assault, were dismissed. He was sentenced to a bad-conduct discharge, nine years’ confinement, and reduction to the low *310 est enlisted grade. Pursuant to the pretrial agreement, the convening authority approved the sentence but reduced the period of confinement to eight years and nine months. The Army Court of Criminal Appeals affirmed the findings and sentence in an unpublished, per curiam decision.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT ARTICLE 13 CREDIT BECAUSE APPELLANT WAS SUBJECTED TO ILLEGAL PRETRIAL PUNISHMENT BY BEING PLACED IN SOLITARY CONFINEMENT SIMPLY BECAUSE OF THE SERIOUSNESS OF THE OFFENSE.

For the reasons contained herein, we affirm. Upon his son’s death on December 4, 1998, appellant was placed in psychiatric care as an inpatient. He remained hospitalized until he was placed in confinement on December 7, 1998. Appellant arrived at the Marine Corps Base Brig at Camp Lejeune, North Carolina, on December 9, 1998, as a pretrial confinement detainee and was placed in a maximum custody status. This status dictated that he remain in his individual cell with no chance to mingle with the general prison population. The trial defense counsel moved for additional confinement credit under Article 13, UCMJ, 10 USC § 813 , * as a result of “unduly harsh conditions of confinement.”

The military judge found that the conditions of confinement “were not imposed with the purpose or intent to punish the accused, nor was there an infliction of unduly rigorous circumstances, or circumstances so excessive as to constitute punishment.” He also found that the conditions “were reasonably related to legitimate, governmental objectives and did not constitute punishment in violation of Article 13.” In reaching these findings, the military judge had before him a Memorandum of Military Magistrate’s Conclusions, dated December 9, 1998. In finding continued pretrial confinement to be warranted, the military magistrate found:

[T]he nature of the offense is grave. The confinee lost his temper and struck his 5 week-old baby’s head against a coffee table and against his own knee. There is medical evidence ... indicating a possible prior assault on the child____ Evidence was presented that the confinee has trouble controlling his temper.

The confinee is a danger to his children and a potential flight risk. He has demonstrated an inability to cope with stress. He is now faced with the stress of pending a murder trial.

The burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13. See ROM 905(c)(2), Manual for Courts-Martial, United States (2000 ed.). The question whether appellant is entitled to credit for a violation of Article 13 is a mixed question of fact and law. United States v. Smith, 53 MJ 168, 170 (2000); United States v. McCarthy, 47 MJ 162, 165 (1997); see Thompson v. Keohane, 516 U.S. 99, 113 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995).

The question of intent to punish is “one significant factor in [the] judicial calculus” for determining whether there has been an Article 13 violation. United States v. Huffman, 40 MJ 225, 227 (1994), citing Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979). We will not overturn a military judge’s findings of fact, including a finding of no intent to punish, unless they are clearly erroneous. United States v. Smith, supra. We will review de novo the ultimate question whether an appellant is entitled to credit for a violation of Article 13.

Other than introducing evidence that appellant was placed in solitary confinement based on the charge alone, appellant has not introduced any evidence of an intent to punish. Both the direct and circumstantial evidence upon which the military judge made his decision, to include the confinement facili *311 ty officials’ decision to keep appellant in maximum custody, support the military judge’s determination. See McCarthy, 47 MJ at 165 . Based on this record, we hold that the military judge’s findings are not clearly erroneous. We further hold, as a matter of law, that appellant is not entitled to additional sentence credit for an Article 13 violation.

The decision of the United States Army Court of Criminal Appeals is affirmed.

The military judge awarded appellant 136 days of pretrial confinement credit pursuant to United States v. Allen, 17 MJ 126 (CMA 1984).

Concurrence — Effron

EFFRON, Judge

(concurring in part and in the result):

Although I would apply a de novo standard of review, I agree with the majority that the actions in this case do not demonstrate a purpose or intent to punish under Article 13. See United States v. Smith, 53 MJ 168, 173 (2000) (Effron, J., concurring in part and in the result).

Combined text as published — syllabus, headnotes and all opinions in one document

UNITED STATES, Appellee v. Trevis D. MOSBY, Specialist U.S. Army, Appellant No. 01-0304 Crim. App. No. 9900437 United States Court of Appeals for the Armed Forces Argued October 23, 2001 Decided February 15, 2002 CRAWFORD, C.J., delivered the opinion of the Court, in which GIERKE and BAKER, JJ., and SULLIVAN, S.J., joined. EFFRON, J., filed an opinion concurring in part and in the result.

Counsel

For Appellant: Captain Sean S. Park (argued); Colonel Adele H. Odegard, Lieutenant Colonel David A. Mayfield, and Major Imogene M. Jamison (on brief).

For Appellee: Captain Jennifer A. Parker (argued); Colonel Steven T. Salata, Lieutenant Colonel Denise R. Lind, and Major Margaret B. Baines (on brief).

Military Judge: James J. Smith THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. United States v. Mosby, No. 01-0304/AR Chief Judge CRAWFORD delivered the opinion of the Court.

Appellant was convicted, pursuant to his pleas, by a

military judge of the involuntary manslaughter of his five-week

old son, in violation of Article 119, Uniform Code of Military

Justice, 10 USC § 919 . Based on a pretrial agreement, a murder

charge, as well as three specifications and a charge of

aggravated assault, were dismissed. He was sentenced to a bad-

conduct discharge, nine years’ confinement, and reduction to the

lowest enlisted grade. Pursuant to the pretrial agreement, the

convening authority approved the sentence but reduced the period

of confinement to eight years and nine months. The Army Court

of Criminal Appeals affirmed the findings and sentence in an

unpublished, per curiam decision.

We granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT ARTICLE 13 CREDIT BECAUSE APPELLANT WAS SUBJECTED TO ILLEGAL PRETRIAL PUNISHMENT BY BEING PLACED IN SOLITARY CONFINEMENT SIMPLY BECAUSE OF THE SERIOUSNESS OF THE OFFENSE.

For the reasons contained herein, we affirm. Upon his son’s

death on December 4, 1998, appellant was placed in psychiatric

care as an inpatient. He remained hospitalized until he was

placed in confinement on December 7, 1998. Appellant arrived at

the Marine Corps Base Brig at Camp Lejeune, North Carolina, on

December 9, 1998, as a pretrial confinement detainee and was

placed in a maximum custody status. This status dictated that 2 United States v. Mosby, No. 01-0304/AR

he remain in his individual cell with no chance to mingle with

the general prison population. The trial defense counsel moved

for additional confinement credit under Article 13, UCMJ, 10 USC

§ 813 ,* as a result of “unduly harsh conditions of confinement.”

The military judge found that the conditions of confinement

“were not imposed with the purpose or intent to punish the

accused, nor was there an infliction of unduly rigorous

circumstances, or circumstances so excessive as to constitute

punishment.” He also found that the conditions “were reasonably

related to legitimate, governmental objectives and did not

constitute punishment in violation of Article 13.” In reaching

these findings, the military judge had before him a Memorandum

of Military Magistrate’s Conclusions, dated December 9, 1998.

In finding continued pretrial confinement to be warranted, the

military magistrate found:

[T]he nature of the offense is grave. The confinee lost his temper and struck his 5 week- old baby’s head against a coffee table and against his own knee. There is medical evidence ... indicating a possible prior assault on the child.... Evidence was presented that the confinee has trouble controlling his temper.

The confinee is a danger to his children and a potential flight risk. He has demonstrated an inability to cope with stress. He is now faced with the stress of pending a murder trial.

* The military judge awarded appellant 136 days of pretrial confinement credit pursuant to United States v. Allen, 17 MJ 126 (CMA 1984).

3 United States v. Mosby, No. 01-0304/AR The burden is on appellant to establish entitlement to

additional sentence credit because of a violation of Article 13.

See RCM 905(c)(2), Manual for Courts-Martial, United States

(2000 ed.). The question whether appellant is entitled to

credit for a violation of Article 13 is a mixed question of fact

and law. United States v. Smith, 53 MJ 168, 170 (2000); United

States v. McCarthy, 47 MJ 162, 165 (1997); see Thompson v.

Keohane, 516 U.S. 99, 113 (1995).

The question of intent to punish is “one significant factor

in [the] judicial calculus” for determining whether there has

been an Article 13 violation. United States v. Huffman, 40 MJ

225, 227 (1994), citing Bell v. Wolfish, 441 U.S. 520 (1979).

We will not overturn a military judge’s findings of fact,

including a finding of no intent to punish, unless they are

clearly erroneous. United States v. Smith, supra. We will

review de novo the ultimate question whether an appellant is

entitled to credit for a violation of Article 13.

Other than introducing evidence that appellant was placed

in solitary confinement based on the charge alone, appellant has

not introduced any evidence of an intent to punish. Both the

direct and circumstantial evidence upon which the military judge

made his decision, to include the confinement facility

officials’ decision to keep appellant in maximum custody,

support the military judge’s determination. See McCarthy, 47 MJ 4 United States v. Mosby, No. 01-0304/AR

at 165. Based on this record, we hold that the military judge’s

findings are not clearly erroneous. We further hold, as a

matter of law, that appellant is not entitled to additional

sentence credit for an Article 13 violation.

The decision of the United States Army Court of Criminal

Appeals is affirmed.

5 United States v. Mosby, 01-0304/AR EFFRON, Judge (concurring in part and in the result):

Although I would apply a de novo standard of review, I

agree with the majority that the actions in this case do not

demonstrate a purpose or intent to punish under Article 13. See

United States v. Smith, 53 MJ 168, 173 (2000) (Effron, J.,

concurring in part and in the result).

How later courts describe this case

Explanatory parentheticals written by citing courts — 3 in all; the most informative distinct ones are shown.

Cited by 70 cases

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Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 7

DepthCaseCited by
Bell v. Wolfish, 441 U.S. 520 (1979) 10,641
Thompson v. Keohane, 516 U.S. 99 (1995) 1,490
United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000) 36
United States v. McCarthy, 47 M.J. 162 (C.A.A.F. 1997) 79
United States v. Allen, 17 M.J. 126 (1984) 237
United States v. Huffman, 40 M.J. 225 (1994) 52
United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) 6

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