United States v. Mosby

                          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unpublished, per curiam decision.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


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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).


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     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

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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.




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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).