UNITED STATES, Appellee
v.
Ermen-Rene BARNETT, Senior Airman
U.S. Air Force, Appellant
No. 12-0251
Crim. App. No. 37578
United States Court of Appeals for the Armed Forces
Argued May 15, 2012
Decided July 16, 2012
ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., and COX, S.J., joined. ERDMANN, J., filed a
separate special concurring opinion. BAKER, C.J., filed a
separate opinion concurring in part and in the result.
Counsel
For Appellant: Major Michael S. Kerr (argued).
For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq. (on brief).
Military Judge: Joseph S. Kiefer
This opinion is subject to revision before final publication.
United States v. Barnett, No. 12-0251/AF
Judge ERDMANN delivered the opinion of the court.
Senior Airman Ermen-Rene Barnett was a United States Air
Force recruiter who engaged in misconduct involving several
female recruits. He entered mixed pleas before a general court-
martial to eight specifications of violating Article 92
(recruiter misconduct and dereliction of duty), one
specification of using marijuana on divers occasions in
violation of Article 112a, and three specifications of witness
tampering in violation of Article 134. Articles 92, 112a, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
912a, 934 (2006). Barnett was found guilty of the Article 92
and Article 112a offenses and not guilty of two of the three
Article 134 offenses (the other Article 134 offense was
withdrawn and dismissed after arraignment). The convening
authority approved the panel’s adjudged sentence of reduction to
E-1, confinement for eight months, and a bad-conduct discharge.
The United States Air Force Court of Criminal Appeals (CCA)
affirmed the findings and the sentence. United States v.
Barnett, No. ACM 37578, slip op. at 8 (A.F. Ct. Crim. App. Nov.
14, 2011).
We granted review in this case to determine if the military
judge properly instructed the members concerning credit ordered
under the provisions of Article 13, UCMJ, 10 U.S.C. § 813
2
United States v. Barnett, No. 12-0251/AF
(2006).1 “The military judge has an independent duty to
determine and deliver appropriate instructions.” United States
v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). “We review issues
concerning non-mandatory instructions for an abuse of
discretion.” United States v. Forbes, 61 M.J. 354, 358
(C.A.A.F. 2005) (citing United States v. Damatta-Olivera, 37
M.J. 474, 478 (C.M.A. 1993)). Under the circumstances of this
case, we hold that the military judge did not abuse his
discretion when instructing the members on the Article 13
confinement credit. We also hold that the military judge was
within his discretion to deny Barnett’s requested instruction
informing the members that they were not permitted to nullify
some or all of the credit by increasing the sentence. Therefore
the decision by the CCA is affirmed.
Background
The specific factual basis for the charges is not relevant
to the issue before the court. At some point prior to trial
Barnett was removed from his recruiter duties and assigned to
1
We granted review of the following issue:
Whether the military judge abused his discretion when
he informed the members of Appellant’s illegal
pretrial punishment credit and then failed to instruct
the members based on a submitted question that they
were not allowed to nullify some or all of that credit
by increasing the sentence.
United States v. Barnett, No. 12-0251/AF, 2012 CAAF LEXIS
176 (C.A.A.F. Feb. 12, 2012) (order granting review).
3
United States v. Barnett, No. 12-0251/AF
perform duties with the “Thunder Pride” team at Luke Air Force
Base, Arizona. The “Thunder Pride” team is a holding unit for
Airmen who are under investigation, facing potential
disciplinary action, or awaiting separation. Based on his
assignment to the “Thunder Pride” team, Barnett moved for
sentence credit under Article 13, UCMJ, alleging illegal
pretrial punishment. While the military judge did not find an
intent to punish, based on the sixteen-month duration of
Barnett’s duties with the “Thunder Pride” team (a base
regulation limits assignment to the “Thunder Pride” team to
sixty days unless the legal office is consulted) and the
circumstances of those duties, he ordered 100 days confinement
credit pursuant to Article 13.2
At an Article 39(a) session the military judge informed
counsel that he had reviewed the sentencing instructions and
while it was clear that members should be instructed about
pretrial confinement credit, it was “a little more confusing
when you’re dealing with credit for pretrial punishment under
Article 13.” Following a discussion of the issue with counsel,
Barnett’s attorney informed the military judge that they did not
want the members instructed about the Article 13 credit in any
2
The appropriateness of the military judge’s award of 100 days
confinement credit has not been appealed by either party and
that issue is not before the court.
4
United States v. Barnett, No. 12-0251/AF
manner. The military judge concluded the session by asking the
parties to look for legal authority on this issue.
After findings were announced, the defense offered several
sentencing exhibits that included information concerning the
circumstances and duties of individuals on the “Thunder Pride”
team. The Government did not object to the exhibits referencing
“Thunder Pride,” but argued that if the exhibits were admitted
the court should instruct the members on the award of Article 13
confinement credit. The military judge asked both counsel if
either of them had found any applicable law as to how to
instruct members of Article 13 credit and both counsel responded
in the negative. The military judge indicated at that point
that he intended to give an instruction similar to the Pretrial
Confinement Credit instruction in the Military Judges’
Benchbook.3 He noted that he was not aware of anything that
would make that instruction applicable only to pretrial
confinement and not Article 13 credit. Neither party objected
at that time and the defense exhibits, including those that
referenced the circumstances and duties of the “Thunder Pride”
team, were admitted into evidence and published to the members.
The military judge then discussed his proposed instructions
with counsel. After acknowledging the defense’s earlier
3
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook ch. 2, § V, para. 2-5-22 (2010).
5
United States v. Barnett, No. 12-0251/AF
objection to any instruction on Article 13 credit, the military
judge informed counsel that he intended to give the following
instruction:
In determining an appropriate sentence in this case,
you should consider that the accused has been
granted 100 days of confinement credit. If you
adjudge confinement as part of your sentence, those
days will be credited against any sentence to
confinement you may adjudge. This credit will be
given by the authorities at the correctional
facility where the accused is sent to serve his
confinement and will be given on a day-for-day
basis.
There were no further objections to the instruction. The
military judge subsequently provided that instruction to the
members and also instructed them:
In selecting a sentence, you should consider
all matters in extenuation and mitigation as well as
those in aggravation, whether introduced before or
after your findings. Thus, all of the evidence you
have heard in this case is relevant on the subject
of sentencing.
During argument on sentence the Government noted that the
court had already taken the conditions of “Thunder Pride” into
account when it awarded Barnett 100 days of confinement credit
for the time he was in “Thunder Pride.” Barnett’s counsel also
referenced “Thunder Pride” and argued that the Government asked
for twenty-four months of confinement “as if they didn’t punish
Airman Barnett already,” and “[t]he government got their ton of
flesh already and now they want it again.”
6
United States v. Barnett, No. 12-0251/AF
Deliberation on sentencing was interrupted when the members
brought a question to the military judge. The following
discussion took place between the military judge (MJ) and the
President of the panel (PRES):
PRES: In your instructions that you gave us, you
talked about a hundred days confinement credit. The
question is, and we can expound if we need to, can
we, as the members, differentiate between a hundred
days of confinement for Thunder Pride versus a
hundred days of confinement?
MJ: Okay. I guess I’m not exactly clear on what
your question is.
PRES: The question is, understanding based on the
defense exhibits that we were provided and knowing
what Thunder Pride is and knowing that it’s not
actual confinement, is it okay for us to
differentiate from the hundred days or do we have to
consider that as confinement?
MJ: Okay. There had been a motion for some credit
that I had to take up related to the circumstances
of Thunder Pride.
MJ: And after reviewing the evidence and the issues
involved in that, I determined that the accused was
to be granted 100 days of credit toward any
confinement that the court may adjudge. So as I
instructed earlier, if the court adjudges
confinement, then the 100 days credit that I granted
already will be applied toward that to be applied by
the correctional facility wherever the accused would
go for any period of confinement.
PRES: So legally, is it okay for us to consider
that hundred days of credit less than what we would
consider actual confinement? That’s the question
that’s come up in our discussions. And maybe for
ease of understanding and, please, this is just for
the example, if we consider 300 days as appropriate
confinement but we know the hundred days credit is
there but we think that the 300 days confinement
should be actual confinement so we bump it up to 400
7
United States v. Barnett, No. 12-0251/AF
days because we know we’re going to subtract a
hundred days; is that legal for us to do that?
MJ: What I can instruct you in this regard is that
you should determine a sentence that you believe is
appropriate for this accused for the offenses that
he’s been found guilty of, considering all of the
evidence that you’ve been presented in the case.
You’ve been provided the fact or circumstance that,
if you adjudge confinement, then he will have 100
days of credit toward any period of confinement that
is adjudged by the court.
Following this exchange the military judge held an Article
39(a) session where the defense specifically requested that the
military judge instruct the members that it was their duty to
adjudge an appropriate sentence “without any consideration about
how many days of pretrial confinement [sic] credit he received”
and that the members were not allowed to increase the amount of
confinement to essentially offset the confinement credit. The
Government opposed the specific instruction requested and
ultimately the military judge provided the following additional
instruction to the members:
Your duty is to adjudge an appropriate sentence
for this accused that you regard as fair and just when
it is imposed and not one whose fairness depends upon
actions that others may or may not take in this case.
These instructions must not be interpreted as
indicating an opinion as to the sentence which should
be adjudged for you alone are responsible for
determining an appropriate sentence in this case. In
arriving at your determination, you should select the
sentence which will best serve the ends of good order
and discipline, the needs of the accused, and the
welfare of society.
8
United States v. Barnett, No. 12-0251/AF
On appeal to the CCA, that court analogized Article 13
confinement credit with Pierce4 credit (credit for punishment
imposed pursuant to Article 15, UCMJ, for the same act or
omission for which an accused faces court-martial) and held
that:
Where the appellant chose to introduce evidence of the
16 months he spent assigned to the “Thunder Pride”
team as evidence in mitigation, we find the military
judge had a duty to instruct the members on the
administrative credit awarded so they may consider
that information during their deliberation on
sentence.
Barnett, No. ACM 37578, slip op. at 7. The CCA went on to hold
that “[a]s in Balboa, the instruction given did not expressly or
by inference invite the members to award extra confinement to
compensate for the administrative confinement credit awarded . .
. .” and found no error in the sentencing instructions given.
Id.
Discussion
Before this court Barnett argues that the military judge
abused his discretion when he failed to properly tailor his
instructions to inform the members that they could not negate or
nullify the Article 13 credit that Barnett had been awarded.
Barnett goes on to argue that once the military judge had
4
United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).
9
United States v. Barnett, No. 12-0251/AF
instructed the members as to the Article 13 credit, he was
required to answer their question as to how they should treat
that credit in their determination of an appropriate sentence.
The Government responds that the military judge did not abuse
his discretion in declining to provide the defense requested
instruction and that he properly instructed the members on how
they should treat the Article 13 credit. Even if the military
judge did not properly instruct the members, the Government
argues that Barnett did not suffer material prejudice to a
substantial right.
Whether the Military Judge Abused His Discretion in
Initially Instructing the Members on the Award of
Article 13 Credit.
After the defense evidence of pretrial punishment was
admitted, the military judge gave the members an instruction
informing them that Barnett had already received confinement
credit for pretrial punishment. Rule for Courts-Martial
(R.C.M.) 1005 addresses required instructions on sentencing.
Subparagraph (a) of the rule provides that “[t]he military judge
shall give the members appropriate instructions on sentence.”
See also Ober, 66 M.J. at 405 (“[t]he military judge has an
independent duty to determine and deliver appropriate
instructions”). Although an instruction on Article 13 credit is
not specifically listed among the required instructions within
10
United States v. Barnett, No. 12-0251/AF
R.C.M. 1005(e), the rule does provide that instructions on
sentence shall include:
(4) A statement informing the members that they are
solely responsible for selecting an appropriate
sentence and may not rely on the possibility of any
mitigating action by the convening or higher
authority; and
(5) A statement that the members should consider all
matters in extenuation, mitigation, and aggravation,
whether introduced before or after findings . . . .
The Discussion to R.C.M. 1005(a) goes on to provide that the
“[i]nstructions should be tailored to the facts and
circumstances of the individual case.” See also United States
v. Wheeler, 17 C.M.A. 274, 277, 38 C.M.R. 72, 75 (1967).
Once evidence of pretrial punishment was introduced during
sentencing by Barnett, “in the interests of reliable and
truthful sentencing,”5 it was within the military judge’s
discretion to initially instruct the members of the Article 13
credit and how it would be credited.
Whether the Military Judge Failed to Answer the
Members’ Question Concerning Treatment of the
Confinement Credit.
Barnett does not assert that the instruction provided by
the military judge in response to the members’ question was
incorrect, but he does argue that the instruction provided did
not answer the question. In United States v. Greaves, 46 M.J.
133, 134 (C.A.A.F. 1997), this court held that the military
5
United States v. Balboa, 33 M.J. 304, 306 (C.M.A. 1991).
11
United States v. Barnett, No. 12-0251/AF
judged erred by “failing to correctly answer two relevant and
proper questions asked by the members concerning the impact of a
bad-conduct discharge on appellant’s impending eligibility to
retire.”
Neither side is arguing that the question posed by the
members was not relevant. The members’ question specifically
asked whether the panel could increase the sentence to offset
the 100 days of credit Barnett received. The second instruction
provided to the members did, in fact, address this question,
although not as specifically as Barnett would have wished:
Your duty is to adjudge an appropriate sentence
for this accused that you regard as fair and just when
it is imposed and not one whose fairness depends upon
actions that others may or may not take in this case.
Emphasis added.
Under the circumstances of this case, we hold that the
instruction correctly responded to the members’ question.
Further, nothing in the instruction invited the members, either
expressly or by inference, to either impose extra confinement to
offset the Article 13 credit or impose less confinement in
consideration for the pretrial punishment. See Balboa, 33 M.J.
at 307.
Whether the Military Judge Abused His Discretion When He
Declined to Give the Defense Requested Instruction.
Barnett requested that the military judge specifically
instruct the members that they could not increase the amount of
12
United States v. Barnett, No. 12-0251/AF
confinement to offset the confinement credit. This court has
said that “[w]hile counsel may request specific instructions,
the military judge has substantial discretion in deciding on the
instructions to give and whether the requested instruction is
appropriate. This discretion must be exercised in light of
correct principles of law as applied to the facts and
circumstances of the case.” United States v. Miller, 58 M.J.
266, 270 (C.A.A.F. 2003).
Denial of a requested instruction is error if: (1) the
requested instruction is correct; (2) “it is not
substantially covered in the main charge”; and (3) “it
is on such a vital point in the case that the failure
to give it deprived [the] defendant of a defense or
seriously impaired its effective presentation.”
Id. (alteration in original) (citation omitted). For the
military judge’s refusal to instruct the members as requested to
be error, all three prongs of the test in Miller must be
satisfied.
We believe that the issue as to how the members should
consider the Article 13 credit was substantially covered in the
instructions provided and therefore the military judge did not
abuse his discretion in declining to give the requested
instruction. We also note, however, the difficulty inherent in
the requested instruction and its potential for confusing the
members. If the military judge had instructed the members that
they could not consider the Article 13 confinement credit in
determining an appropriate sentence, that instruction would have
13
United States v. Barnett, No. 12-0251/AF
been in conflict with the standard instruction properly
informing the members that they should consider all matters in
extenuation and mitigation as well as those in aggravation in
determining an appropriate sentence.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
14
United States v. Barnett, No. 12-0251/AF
ERDMANN, Judge (special concurrence):
I write separately solely to note an issue that was not
raised in this case but which may have an impact on this area of
the law absent legislative or administrative clarification.
This court has held that “[t]he proper applications of credit
for illegal pretrial punishment and lawful pretrial confinement
are questions of law, reviewed de novo.” United States v.
Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002). As a question of
law, therefore, whether an accused has been subject to illegal
pretrial punishment and, if so, the appropriate credit for such
illegal pretrial punishment, could be viewed as issues solely
for the military judge.
On the other hand, this court has recognized that an
accused seeking relief from alleging pretrial punishment has a
tactical decision to make -- presenting the evidence of illegal
pretrial punishment to the members or asking the military judge
for specific relief under Article 13. United States v.
Southwick, 53 M.J. 412, 416 (C.A.A.F 2000); United States v.
Tanksley, 54 M.J. 169, 177 (C.A.A.F. 2000).1 In Inong, we
addressed a situation where the appellant did not seek Article
13 relief from the military judge but raised the issue of
1
To the extent that Southwick and Tanksley established a
“tantamount to affirmative waiver” rule for asserted violations
of Article 13 raised for the first time on appeal, they were
overruled by United States v. Inong, 58 M.J. 460, 464 (C.A.A.F.
2003).
United States v. Barnett, No. 12-0251/AF
illegal pretrial punishment to the members during his sentencing
case. 58 M.J. at 462-63. The appellant then requested Article
13 sentencing credit from the CCA on appeal. In holding that
Inong was not entitled to Article 13 relief we noted:
[A]n 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 condition as a means
of obtaining a lesser adjudged sentence. Southwick,
53 M.J. at 416; Tanskley, 54 M.J. at 177.
Id. at 463.
The “tactical decision” discussed in these cases appears to
be whether to request specific Article 13 relief from the
military judge or to present the underlying facts of the illegal
pretrial punishment to the members for consideration in
determining an appropriate sentence. If, however, an accused
were free to pursue both forums, there would be no tactical
decision to make. While not specifically discussed in these
cases, the underlying rationale for such a rule may be that if
an accused opts to pursue an Article 13 motion before the
military judge, the matter has been properly litigated. If the
accused is then permitted to present the same evidence in his
sentencing case he is re-litigating the legal issue already
decided by the military judge and creating the potential for
being credited twice for the same government conduct.
2
United States v. Barnett, No. 12-0251/AF
I take no position on this matter as it is unnecessary for
resolution of the case before us, but in the absence of
legislative or administrative clarification, I merely note the
issue until it is properly presented to the court.
3
United States v. Barnett, No. 12-0251/AF
BAKER, Chief Judge (concurring in part and in the result):
I agree with the Court’s conclusion that the military judge
did not abuse his discretion when he initially instructed the
members regarding the Article 13, UCMJ, 10 U.S.C. § 813 (2006),
credit. However, I believe that there was instructional error
in this case, given the unusual questions from the members and
the military judge’s failure to provide a tailored instruction
in response.
DISCUSSION
Where, as in this case, the military judge has awarded
credit for government conduct that has already occurred and the
accused chooses to argue pretrial punishment during sentencing,
the military judge should instruct the members that the accused
will already be credited for the Article 13, UCMJ, violation,
thus negating any concern of a double benefit to the accused.
The military judge should then instruct the members that their
duty is to assess a sentence appropriately based on the
accused’s conduct and all other relevant matters independent of
any credit the accused might be entitled to under Article 13,
UCMJ, based on the government’s conduct. The military judge
properly instructed on both matters in this case.
However, the problem arose in this case when the members
asked multiple questions suggesting the possibility that they
United States v. Barnett, No. 12-0251/AF
might nullify the military judge’s previous award of credit.
The president of the panel asked:
In your instructions that you gave us, you talked to
us about a hundred days confinement credit. The
question is, and we can expound if we need to, can we,
as the members, differentiate between a hundred days
of confinement credit for Thunder Pride versus a
hundred days of confinement?
The military judge asked for clarification, and the member
clarified:
The question is, understanding based on the defense
exhibits that we were provided and knowing what
Thunder Pride is and knowing that it’s not actual
confinement, is it okay for us to differentiate from
the hundred days or do we have to consider that as
confinement?
The military judge reiterated part of his previous instruction,
prompting the member to again clarify the question:
So legally, is it okay for us to consider that hundred
days of credit less than what we would consider actual
confinement? That’s the question that’s come up in
our discussions. And maybe for ease of understand
and, please, this is just for the example, if we
consider 300 days as the appropriate confinement but
we know the hundred days credit is there but we think
that the 300 days confinement should be actual
confinement so we bump it up to 400 days because we
know we’re going to subtract a hundred days; is that
legal for us to do that?
These questions required a tailored response rather than a
repeat of the standard instruction. First, the questions
suggested, without confirming, that a member or members might be
inclined to nullify or negate the military judge’s award of
Article 13, UCMJ, credit. However, the question of whether an
2
United States v. Barnett, No. 12-0251/AF
accused was subject to pretrial punishment and entitled to
credit is a question of law for the military judge to decide.
“The proper applications of credit for illegal pretrial
punishment and lawful pretrial confinement are questions of law,
reviewed de novo.” United States v. Spaustat, 57 M.J. 256, 260
(C.A.A.F. 2002).
Second, Article 13, UCMJ, credit is provided for conduct in
which the government has already engaged. In other words, it is
relief for the government’s conduct, not a sentencing factor
related to the accused’s offenses. In this sense, pretrial
punishment is different than pretrial confinement, which is
offset against adjudged confinement and thus is appropriately
part of the members’ calculus of confinement earned by an
accused based on his rather than the government’s conduct.
Finally, even if the members were permitted to consider
whether to nullify an accused’s Article 13, UCMJ, credit because
they did not agree with the amount of credit or the military
judge’s determination that credit was due, they could not do so
without additional appropriate instructions on what legally
qualifies as pretrial punishment under Article 13, UCMJ.
Thus, although the military judge was not obliged to give
the specific defense requested instruction, in my view the
military judge erred by not providing a more tailored
instruction in response to the members’ questions suggesting the
3
United States v. Barnett, No. 12-0251/AF
possibility of credit nullification. Nevertheless, I would
affirm this case on the ground that Appellant has not shown
prejudice. For sure, it is difficult to show prejudice given
United States v. Balboa, 33 M.J. 304 (C.M.A. 1991), where the
members appeared to have added an additional sixty-eight days of
confinement -- the exact amount of automatic administrative
credit for the accused’s pretrial confinement. Nonetheless,
Balboa received no relief on appeal.
However, even if one treats the members’ deliberations as
immutable, much like a convening authority’s discretionary
judgment on clemency, and applies a “colorable showing of
possible prejudice” as the standard, Appellant falls short. See
United States v. Rodriguez-Rivera, 63 M.J. 372, 384 (C.A.A.F.
2006) (citation and quotation marks omitted). Appellant only
received eight months when he could have received fifteen and a
half years of confinement. Manual for Courts-Martial, United
States pt. IV, paras. 16.e.(1),(3)(B); 37.e.(1)(b) (2006).
Thus, Appellant’s sentence was only a fraction of what it could
have been. Moreover, there is nothing about the sentence in
this case that suggests the members in fact negated the credit
awarded by the military judge.
4