United States v. Inong

                          UNITED STATES, Appellee


                                        v.


                  Miguel E. INONG, Damage Controlman
                           First Class (E-6)
                         U.S. Navy, Appellant


                                  No. 00-0327

                          Crim. App. No. 9801667


       United States Court of Appeals for the Armed Forces


                       Argued April 9, 2003

                       Decided July 10, 2003


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and ERDMANN, JJ., joined. BAKER, J.,
filed a separate opinion concurring in part and in the result.

                                    Counsel

For Appellant:     Major Anthony C. Williams, USMC (argued and on
brief).

For Appellee: Lieutenant Lori McCurdy, JAGC, USNR (argued);
Colonel Rose M. Favors, USMC (on brief).

Military Judge: G. N. Gonzalez



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Inong, No. 00-0327/NA


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Pursuant to his pleas, Appellant was convicted by a

military judge sitting as a general court-martial of conspiracy

to commit larceny, desertion, larceny, making and uttering bad

checks, housebreaking, and carrying a concealed weapon, in

violation of Articles 81, 85, 121, 123a, 130, and 134, Uniform

Code of Military Justice [hereinafter UCMJ], 

10 U.S.C. §§ 881

, 885, 921, 923a, 930, and 934 (2000), respectively.     He

was sentenced to a dishonorable discharge, confinement for three

years, total forfeitures, and reduction to the lowest enlisted

grade.   The convening authority approved the sentence but

suspended confinement in excess of 20 months in accordance with

the terms of a pretrial agreement between Appellant and the

convening authority.

     The Navy-Marine Corps Court of Criminal Appeals affirmed

the findings and sentence in a short-form, unpublished opinion.

United States v. Inong, NMCM No. 98-01667 (N-M. Ct. Crim. App.

Sep. 29, 1999).   Thereafter, Appellant petitioned this Court for

review, and for the first time at either the trial or appellate

level, he sought sentence relief for what he argued was illegal

pretrial punishment.   In response, this Court set aside the

decision of the Court of Criminal Appeals and remanded the case

to that court “to consider this question initially and to take




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United States v. Inong, No. 00-0327/NA


remedial action if necessary.”   United States v. Inong, 

54 M.J. 375

 (C.A.A.F. 2000).

     Prior to that remand, but after the lower court initially

decided Appellant’s case, this Court decided United States v.

Southwick, 

53 M.J. 412

 (C.A.A.F. 2000), and United States v.

Tanksley, 

54 M.J. 169

 (C.A.A.F. 2000).   In Southwick and

Tanksley, we held that when the record reflects a tactical

decision to present the issue of illegal pretrial punishment to

the court-martial panel with the goal of obtaining a lesser

sentence, rather than presenting the issue to the military judge

for the purpose of obtaining pretrial punishment credit, that

tactical decision waives the issue of whether a specific credit

for pretrial punishment is warranted.

     Relying on these cases, the Court of Criminal Appeals again

affirmed the findings and sentence in Appellant’s case,

concluding that Appellant made a tactical decision at trial to

use the conditions of his pretrial confinement as a means of

obtaining a lesser adjudged sentence, rather than seek credit

against his adjudged sentence by arguing the issue of illegal

pretrial punishment.   United States v. Inong, 

57 M.J. 501

, 502-

03 (N-M. Ct. Crim. App. 2002).

     Thereafter, Appellant again petitioned this Court for

review, and we granted the petition on the following issues:




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     I.    WHETHER APPELLANT WAS SUBJECTED TO ILLEGAL
           PRETRIAL PUNISHMENT BY BEING CONFINED IN MAXIMUM
           CUSTODY FOR 37 DAYS IN VIOLATION OF ARTICLE 13,
           UCMJ, 

10 U.S.C. § 813

 (2000).

     II.   WHETHER THE LOWER COURT ERRED IN FINDING THAT
           APPELLANT AFFIRMATIVELY WAIVED THE ISSUE OF
           ILLEGAL PRETRIAL PUNISHMENT.

     As to Issue II, we hold the Court of Criminal Appeals

correctly applied Southwick and Tanksley to the facts of

Appellant’s case, and thereby correctly determined that

Appellant is not entitled to any appellate relief stemming from

the conditions of his pretrial confinement.   We further hold

that in the future, failure at trial to raise the issue of

illegal pretrial punishment waives that issue for purposes of

appellate review absent plain error.   See United States v. King,

58 M.J. 110

 (C.A.A.F. 2003)(holding the same as to restriction

tantamount to confinement).

     Given our resolution of Issue II, we need not address

Issue I.

                        FACTUAL BACKGROUND

     Between October 2, 1996, and January 9, 1997, Appellant

conspired with two different servicemen on three separate

occasions to steal government-owned computers worth in aggregate

more than $8,700.   In turn, each of these planned larcenies was

completed, with Appellant and his co-conspirators breaking into

several Navy office buildings in the middle of the night and



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United States v. Inong, No. 00-0327/NA


stealing the desired computers.    However, shortly thereafter,

Appellant’s co-conspirators were questioned by law enforcement

agents, and they made statements incriminating both themselves

and Appellant.   As a result, charges were preferred against

Appellant for these offenses, and he soon faced court-martial.

     But a court-martial was something Appellant was unwilling

to face, so on July 19, 1997, he left the military in order to

avoid prosecution, and remained absent until March 1, 1998, when

his absence was terminated by apprehension.    Prior to his

apprehension, Appellant continued his criminal conduct by

knowingly writing ten bad checks while he had insufficient funds

and no intent to pay.    Nine of the checks were for cash received

totaling $2,700, and one was to “purchase” yet another computer

valued in excess of $3,400.    All of the checks bounced.

     Initially, Appellant was apprehended by civilian

authorities.   At the time of his apprehension, Appellant was

found illegally concealing a loaded .40 caliber handgun

underneath the seat of a car.    Shortly thereafter, Appellant was

transferred to military control and placed in “maximum custody”

pretrial confinement.    In an affidavit filed with the Court of

Criminal Appeals after our remand, Appellant described these

conditions as follows:

     On March 10, 199[8] I was confined to the Camp
     Pendleton Base Brig. Upon arrival at [4:00 a.m.] my



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     head was shaved bald and I was placed in [maximum]
     confinement.[*] Two U.S. Marine guards escorted me in
     my bare feet, with leg irons and my hands handcuffed
     to my waist to a 5-foot by 8-foot metal cell. The
     Ambient air temperature was right around 48 degrees
     Fahrenheit. I was given three wool blankets and told
     to fill out a cell evaluation and then go to sleep.
     At [4:45 a.m.] I went to sleep and was told to rise at
     [5:00 a.m.] by guard for reveille. I was feed [sic]
     my meal through a 12 inch by 5 inch opening in the
     metal door. The same opening used to pass a toilet
     brush to clean my toilet. When I showered I was
     handcuffed and any other time I left the special
     quarters area I was handcuffed to my waist and legs
     were shackled with leg irons.

          On or about March 28, 199[8] my brig assigned
     counselor, SGT [M] informed me that if I signed a Pre-
     trial agreement he would get me out of [maximum]
     Confinement. Later that week I spoke to my defense
     counsel, Lt. [N], and counsel informed me that he
     would be coming to the brig to discuss a Pre-trial
     agreement.

          On or about April 4, 199[8] Lt. [N], Defense
     counsel, arrived at Camp Pendleton base brig. He
     informed me of a pre-trial agreement the government
     had offered and that if I accepted the agreement He
     would get me out of [maximum] Confinement. I signed
     the agreement.

          On or about April 10, 199[8] I received a fax
     copy of my signed pre-trial agreement from my
     Convening Authority, naval Weapons Station: Seal
     Beach. Upon receipt of that agreement I gave a copy
     to my Brig Counselor, SGT [M]. SGT [M] stated that he
     would be able to get me out of [maximum] Confinement
     soon. On or about April 15, 199[8] I was released
     from [maximum] Confinement.




*
  In his affidavit, Appellant mistakenly referred to the year as “1997” and
the confinement as “solitary.” United States v. Inong, 

57 M.J. 501

, 502 n.2
(N-M. Ct. Crim. App. 2002).




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United States v. Inong, No. 00-0327/NA


     Appellant argues the conditions of this maximum custody

pretrial confinement amounted to illegal pretrial punishment

entitling him to sentence credit.     The Government has not

contested Appellant’s version of the conditions of his pretrial

confinement, and we accept them as true for purposes of this

appeal.   See United States v. Steele, 

53 M.J. 274, 275

 (C.A.A.F.

2000)(uncontested facts in document offered by Appellant and

admitted by this Court accepted as true for purposes of appeal).

As for Appellant, he has never suggested that the relationship

between entering into a pretrial agreement and being released

from maximum custody affected the voluntariness of his pretrial

agreement or the providence of his pleas, and no such issue is

before us.   See Inong, 

57 M.J. at 503

 n.5 (“[Appellant] stated,

under oath, that no one had threatened or forced him to enter

into the pretrial agreement, [and] that he entered into the

agreement voluntarily”).

                       PROCEDURAL BACKGROUND

     Neither Appellant nor his defense counsel filed any

complaint or grievance prior to trial asserting that the

conditions of Appellant’s pretrial confinement rose to the level

of illegal pretrial punishment.   Moreover, at trial, before

receiving Appellant’s pleas, the military judge asked if the

defense had any motions, and the defense had none.     That is




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United States v. Inong, No. 00-0327/NA


significant, because if Appellant wanted sentence credit for

what he believed was illegal pretrial punishment at the

confinement facility, he could have asked for it, as he was not

precluded from doing so by the terms of his pretrial agreement.

See United States v. McFadyen, 

51 M.J. 289

 (C.A.A.F. 1999)

(accused can waive right to seek relief for illegal pretrial

punishment as part of pretrial agreement with convening

authority).

     Although at trial Appellant did not seek sentence credit

for illegal pretrial punishment, he twice made reference to the

conditions of his pretrial confinement when he gave an unsworn

statement before being sentenced.    At the beginning of his

statement, he said: “While I was confined at Camp Pendleton base

brig, the first weeks I spent I spent in solitary confinement.

I sat in a six by nine cell, next to convicted murderers,

rapists and drug dealers.”   At the end of his statement he

also said: “During my six weeks of solitary confinement at

Camp Pendleton base brig, I sunk to the lowest point in my

Life . . . .   In that six by nine cell . . . I realized I must

accept responsibility for my actions.”

     Appellant’s trial defense counsel also referenced the

conditions of Appellant’s pretrial confinement during counsel’s

sentencing argument.   Counsel said:




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United States v. Inong, No. 00-0327/NA


     Earlier we mentioned that the maximum [confinement
     the accused faces] is 126 years. That’s a long time,
     sir. What is the purpose of keeping him in there that
     long? The message we’re sending out to the fleet is
     “hey, we’re not going to tolerate this. And that’s
     why if you get caught, we’re going to send you to Camp
     Pendleton, spend six weeks in maximum and then whatever
     else time.”

     On appeal, Appellant asserts that during the period of his

pretrial confinement, the brig had a policy of confining all

pretrial detainees in maximum custody who could be sentenced to

more than five years’ confinement, and that the policy was

applied arbitrarily to him.

                              DISCUSSION

                       1. Appellant’s Case

     Article 13 provides:

          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 rigorous than the circumstances required
     to insure his presence [at trial].

Thus, in United States v. Fricke, 

53 M.J. 149

 (C.A.A.F. 2000),

this Court recognized that Article 13 prohibits two things: (1)

the intentional imposition of punishment on an accused before

his or her guilt is established at trial, i.e., illegal pretrial

punishment, and (2) arrest or pretrial confinement conditions

that are more rigorous than necessary to ensure the accused’s

presence at trial, i.e., illegal pretrial confinement.   

Id.

 at




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United States v. Inong, No. 00-0327/NA


154 (citing United States v. McCarthy, 

47 M.J. 162, 165

(C.A.A.F. 1997)).

     If an accused, or appellant, can demonstrate that either

existed, he or she is entitled to sentence relief.    United

States v. Mosby, 

56 M.J. 309, 310

 (C.A.A.F. 2002)(“burden is on

appellant to establish . . . violation of Article 13”); Rule for

Courts-Martial 305(k)[hereinafter R.C.M.](“additional credit for

each day of pretrial confinement that involves an abuse of

discretion or unusually harsh circumstances”); United States v.

Suzuki, 

14 M.J. 491

 (C.M.A. 1983).

       Nothwithstanding these rules, an appellant is not

entitled to sentence credit on appeal for what is alleged to

have been illegal pretrial punishment or confinement if such

relief was not sought at trial, but instead, a tactical decision

was made to use the complained of conditions as a means of

obtaining a lesser adjudged sentence.    Southwick, 

53 M.J. at 416

; Tanksley, 

54 M.J. at 177

.    In Appellant’s case, the Court

of Criminal Appeals concluded that is exactly what happened.     We

agree with the court below.   Appellant is now precluded under

Southwick and Tanksley from arguing that the conditions of his

pretrial confinement violated Article 13.    He is therefore

entitled to no sentence relief.




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                          2. Future Cases

     In United States v. Huffman, 

40 M.J. 225, 227

 (C.M.A.

1994), a majority of this Court held that “we will not invoke

waiver [of alleged Article 13 violations] unless there is an

affirmative, fully developed waiver on the record.”   Today,

however, we conclude Huffman’s affirmative waiver rule is

unworkable.   As a result, we now overrule Huffman and begin

following the “raise or waive” rule required by the Manual for

Courts-Martial, United States (2002 ed.)[hereinafter MCM], as

relates to assertions of illegal pretrial confinement and

punishment.   See R.C.M.s 905(e), 906(b)(8); Huffman, 

40 M.J. at 228-29

 (Crawford, C.J., joined by Gierke, J., dissenting in part

and concurring in the result).   In so doing, we also overrule

Southwick, 

53 M.J. at 416

, and Tanksley, 

54 M.J. at 177-78

, to

the extent they establish a “tantamount to affirmative waiver”

rule in the Article 13 arena.

     This we do not do lightly, respectful as we are of the

important doctrine of stare decisis.   Thus, in United States v.

Tualla, 

52 M.J. 228

 (C.A.A.F. 2000), we stated:

     Under this fundamental principle, adherence to
     precedent “is the preferred course because it
     promotes the evenhanded, predictable, and consistent
     development of legal principles, fosters reliance on
     judicial decisions, and contributes to the actual and
     perceived integrity of the judicial process.”




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United States v. Inong, No. 00-0327/NA

Id.

 at 231 (quoting Payne v. Tennessee, 

501 U.S. 808, 827

(1991)).   However, we also recognized in Tualla that “[s]tare

decisis is a principle of decision making, not a rule, and need

not be applied when the precedent at issue is ‘unworkable or

. . . badly reasoned.’”   

Id.

   Unfortunately, Huffman’s

affirmative waiver rule has proven to be unworkable when one

considers the result it has generated in light of the strong

policy reasons behind the “raise or waive” rule.

     The purpose of the MCM’s “raise or waive” rule is “to

promote the efficiency of the entire justice system by requiring

the parties to advance their claims at trial, where the

underlying facts can best be determined.”     King, 

58 M.J. at 114

.

This rule is especially important in the military justice system

“[b]ecause of the turnover of personnel and changing conditions

at [military] confinement facilities.”     Huffman, 

40 M.J. at 229

(Crawford, C.J., joined by Gierke, J., dissenting in part and

concurring in the result).   Once an Article 13 violation is

suspected, the parties “must determine who was responsible for

operating the facility, interview witnesses at the facility to

determine the nature of the confinement conditions, and

determine” whether there actually was illegal pretrial

punishment or confinement.   

Id.

    “Obviously, raising an

allegation such as [this] on appeal for the first time that




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United States v. Inong, No. 00-0327/NA


could have been raised as early as in the pretrial stage places

an unnecessary burden on a worldwide justice system.    That is

precisely why there are Manual Rules invoking waiver.”    

Id.

     The rationale behind waiver is “to eliminate the expense to

the parties and the public of rehearing an issue that could have

been dealt with by a timely objection or motion at trial” by the

one party best positioned to make that happen – the party in

need of relief.   

Id.

   This principle is “essential” to the

continued effectiveness of our heavily burdened trial and

appellate judicial systems.    Hormel v. Helvering, 

312 U.S. 552, 556

 (1941).   At odds with this principle, however, is the result

produced by the Huffman rule and exemplified by Appellant’s case

– “one more case demonstrating the wisdom of the waiver rule in

R.C.M. 905(e).”   Fricke, 

53 M.J. at 156

 (Gierke, J., concurring

in part and dissenting in part).

     Time and again since Huffman was decided, appellants have

waited until the appellate stages of the court-martial process

to advance claims of illegal pretrial confinement and

punishment, and to seek sentence relief.    See Tanksley, 

54 M.J. at 169

; United States v. Scalarone, 

54 M.J. 114

 (C.A.A.F. 2000);

Southwick, 

53 M.J. at 412

; Fricke, 

53 M.J. at 149

; United States

v. Yunk, 

53 M.J. 145

 (C.A.A.F. 2000); United States v. Avila, 

53 M.J. 99

 (C.A.A.F. 2000); see also King, 

58 M.J. at 110

 (same for




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United States v. Inong, No. 00-0327/NA


restriction tantamount to confinement).   At the same time,

however, appellants frequently have placed before the trial

level sentencing authority information and argument about those

very same pretrial conditions, hoping it will result in a

lenient sentence.   See Tanksley, 

54 M.J. at 177

; Southwick,

53 M.J. at 416

; Inong, 

57 M.J. at 502

.

     The end result of this practice is expensive, time-

consuming appellate litigation characterized by undeveloped

factual records (which could have been created at the trial

level), the resulting need for remands and rehearings, and the

difficulty in conducting those proceedings years later when

confinement facilities, personnel, and programs have changed.

We therefore conclude that Huffman is unworkable and must be

overruled, along with the Southwick and Tanksley “tantamount to

affirmative waiver” rule.   We therefore hold that once this

opinion becomes final, failure at trial to seek sentence relief

for violations of Article 13 waives that issue on appeal absent

plain error.   See King, 

58 M.J. at 114

 (same for restriction

tantamount to confinement).   Having said that, however, we urge

all military judges to remember that nothing precludes them from

inquiring sua sponte into whether Article 13 violations have

occurred, and prudence may very well dictate that they should.




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United States v. Inong, No. 00-0327/NA


                            DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                               15
     Judge BAKER (concurring in part and in the result):

     I would decide this case on the ground that Appellant has

not carried his burden of demonstrating a violation of Article

13, Uniform Code of Military Justice, 

10 U.S.C. § 813

 (2000).

As this court has recognized on previous occasions, Appellant's

failure to raise the matter at trial may be indicative of, but

not dispositive as to, whether or not an individual was subject

to pretrial punishment.

     Although I agree with the majority and the lower court that

United States v. Southwick, 

53 M.J. 412

 (C.A.A.F. 2000), and

United States v. Tanksley, 

54 M.J. 169

 (C.A.A.F. 2000), were the

law at the time, I am less confident than the majority that an

appellate court can infer from Appellant's sentencing statement

a tactical choice to abstain from seeking credit for alleged

pre-trial punishment as a means of obtaining a lesser adjudged

sentence.   Certainly, I am not prepared to conclude that

Appellant’s words, or those of his counsel, amounted to an

affirmative waiver on Article 13.

     In my view, Tanksley and Southwick invite appellate courts

to engage in appellate speculation regarding trial tactics that

in context may be undue.   This concern is readily avoided by the

prospective rule adopted by the court today or by having

military judges affirmatively inquire where the facts suggest

the possibility of Article 13 credit.   Where liberty interests
United States v. Inong, No. 00-0327/NA


and unlawful government conduct converge in Article 13, legal

policy should favor clear black-letter rules.   Therefore, I join

that part of the lead opinion adopting a clear raise or waive

rule linked as it is to this Court’s admonishments that military

judges should exercise their inherent and prudential authority

to affirmatively inquire where the facts suggest that an Article

13 violation may have occurred.   See United States v. King, 

58 M.J. 110, 115

 (Baker, J., with whom Erdmann, J., joined

concurring in result).




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