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unpublished, per curiam decision.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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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).
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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
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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).