This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Joshua KATSO, Airman Basic
United States Air Force, Appellee
No. 17-0326
Crim. App. No. 38005 (rem)
Argued December 5, 2017—Decided March 12, 2018
Military Judges: William C. Muldoon Jr.,
and Matthew D. Van Dalen
For Appellant: Captain Tyler B. Musselman (argued);
Mary Ellen Payne, Esq. (on brief).
For Appellee: Captain Patrick A. Clary (argued); Major
Isaac C. Kennen (on brief); Colonel Jane E. Boomer.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge RYAN delivered the opinion of the Court.
The United States Air Force Court of Criminal Appeals
(AFCCA) wrongly assumed that the procedures and penal-
ties contained in Rule for Courts-Martial (R.C.M.) 305 (enti-
tled “Pretrial confinement”) applied in full to Appellee—an
adjudged and sentenced prisoner whose sentence has been
ordered executed. Accordingly, it determined that Appellee
was entitled to a sua sponte continued confinement hearing
within seven days of the Government’s certification to this
Court pursuant to Article 67(a)(2), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 867 (2012), and day-for-day
credit for each day served in confinement between certifica-
tion and the date of the continued confinement hearing.
United States v. Katso (Katso III), No. ACM 38005 (rem), slip
op. at 9−10 (A.F. Ct. Crim. App. Feb. 2, 2017) (unpublished).
United States v. Katso, No. 17-0326/AF
Opinion of the Court
Appellee was not in pretrial confinement, and neither of
the cases the AFCCA relied upon—Moore v. Akins, 30 M.J.
249, 253 (C.M.A. 1990), and United States v. Miller, 47 M.J.
352, 361−62 (C.A.A.F. 1997)—purported to adopt all R.C.M.
305 procedures and penalties in post-trial cases pending ap-
pellate review to this Court. Moreover, R.C.M. 305 does not
govern this case: Article 57a(c), UCMJ, 10 U.S.C. § 857a(c)
(2012), is the statute governing deferral of continued con-
finement pending appellate review under Article 67(a)(2),
UCMJ. While that statute provides that convicted prisoners
may seek deferral of confinement pending review of a deci-
sion favorable to the accused certified to this Court, and that
the relevant secretary may grant such deferral and order the
prisoner released, it does not provide guidance let alone re-
quirements as to the timing of such review, or the penalties,
if any, for failing to initiate such review.
In any event, Appellee, an adjudged and sentenced pris-
oner, received a continued confinement hearing during the
pendency of the Government’s certificate of review to this
Court, once he asked for one. That hearing was resolved
against him, he remained confined, and all periods of con-
finement served were credited against his adjudged sentence
once the decision of the AFCCA was reversed by this Court
in 2015. There was no prejudice to the substantial rights of
the accused, Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012),
and no basis for awarding confinement credit even if he was
entitled to a hearing sua sponte.
We affirm Appellee’s findings and sentence, but reverse
the erroneous decision of the AFCCA in awarding confine-
ment credit.
I. Facts and Procedural History
Appellee was convicted, contrary to his pleas, by a gen-
eral court-martial composed of officer and enlisted members
of one specification of aggravated sexual assault, one specifi-
cation of burglary, and one specification of unlawful entry,
in violation of Articles 120, 129, and 134, UCMJ, 10 U.S.C.
§§ 920, 929, 934 (2012). The court-martial sentenced Appel-
lee to confinement for ten years, a dishonorable discharge,
and forfeiture of all pay and allowances. The convening au-
thority approved the sentence as adjudged.
2
United States v. Katso, No. 17-0326/AF
Opinion of the Court
On April 11, 2014, the AFCCA set aside the findings and
sentence. United States v. Katso (Katso I), 73 M.J. 630, 642
(A.F. Ct. Crim. App. 2014). On June 9, 2014, the Judge Ad-
vocate General (TJAG) of the Air Force certified an issue to
this Court, pursuant to Article 67(a)(2), UCMJ.
Argument on the certified issue was heard at this Court
on October 7, 2014. While the first certification was pending,
Appellee remained in confinement. Appellee requested re-
view of his continued confinement for the first time on June
3, 2015, approximately one year after TJAG certification. On
June 4, 2015, Appellee filed a motion with our Court for ap-
propriate relief in the event this Court reversed the
AFCCA’s decision on the certified issue. On June 5, 2015,
Appellee also filed a petition for extraordinary relief in the
nature of a writ of habeas corpus with AFCCA, requesting to
be released from confinement. On June 6, 2015, a continued
confinement hearing was ordered to determine whether Ap-
pellee should remain confined pending the decision of this
Court.
On June 15, 2015, Appellee’s continued confinement
hearing was held. The Continued Confinement Reviewing
Officer determined that Appellee should remain in confine-
ment pending the resolution of his appeal because it was
foreseeable that Appellee was both a flight risk and would
engage in other serious criminal misconduct, and less severe
forms of restraint were inadequate. Appellee remained in
confinement.
Subsequently, this Court issued its opinion in United
States v. Katso (Katso II), 74 M.J. 273 (C.A.A.F. 2015), and
reversed the decision of the AFCCA, effectively reinstating
Appellee’s convictions and sentence.1 Id. at 284. The record
was remanded to the AFCCA for further proceedings under
Article 66, UCMJ, 10 U.S.C. § 866 (2012). Id. Appellee’s pe-
tition for a writ of certiorari was denied. Katso v. United
States, 136 S. Ct. 1512 (2016).
1 In our decision, we denied Appellee’s motion for appropriate
relief without prejudice to seeking relief upon remand to the lower
court. Katso II, 74 M.J. at 284 n.8.
3
United States v. Katso, No. 17-0326/AF
Opinion of the Court
On remand before the AFCCA, Appellee asserted, inter
alia, that he was entitled to day-for-day sentence relief for
procedural errors under R.C.M. 305 relating to his confine-
ment pending resolution of the Government appeal. Katso
III, No. ACM 38005 (rem), slip op. at 2, 4. The AFCCA, rely-
ing on Moore, Miller, and R.C.M. 305(i)(2), held that a con-
tinued confinement hearing was required within seven days
of TJAG certification. Id. at 9. Moreover, relying on lan-
guage in R.C.M. 305, particularly R.C.M. 305(k), the AFCCA
awarded Appellee with 365 days of credit to his confinement,
representing day-for-day credit for the period between certi-
fication and the date of the continued confinement hearing
without testing for prejudice.2 Id. at 10.
Pursuant to Article 67(a)(2), UCMJ, TJAG then certified
following issues:
I. WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN IT HELD
THAT UNITED STATES v. MILLER, 47 M.J. 352
(C.A.A.F. 1997) REQUIRED THE GOVERNMENT
TO HOLD A CONTINUED CONFINEMENT
HEARING WITHIN 7 DAYS OF THE JUDGE
ADVOCATE GENERAL'S DECISION ON
CERTIFICATION.
II. WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN IT FOUND
THAT GOVERNMENT'S FAILURE TO HOLD A
CONTINUED CONFINEMENT HEARING
WITHIN 7 DAYS OF THE JUDGE ADVOCATE
GENERAL'S DECISION ON CERTIFICATION
AUTOMATICALLY RESULTED IN DAY-FOR-
DAY SENTENCING CREDIT.
III. WHETHER APPELLEE WAS
PREJUDICED WHEN THE GOVERNMENT
FAILED TO HOLD A CONTINUED
CONFINEMENT HEARING WITHIN 7 DAYS OF
CERTIFICATION.
2 The AFCCA affirmed Appellee’s findings and sentence as to
the aggravated sexual assault and burglary charges and specifica-
tions, and set aside and dismissed with prejudice the unlawful en-
try charge and specification. Katso III, No. ACM 38005 (rem),
slip op. at 10.
4
United States v. Katso, No. 17-0326/AF
Opinion of the Court
II. Discussion
Whether the government has a sua sponte duty to hold a
continued confinement hearing within seven days of a certi-
fication to this Court under Article 67(a)(2), UCMJ, is a
question of law, which we review de novo. United States v.
Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003) (citing United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)).
The overarching problem with the AFCCA’s approach to
this case is that, without any case law, or any rule-based or
statutory authority, it imposed the entirety of R.C.M. 305
procedures and penalties, crafted for pretrial confinement,
on the Government in a completely different context. See
United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)
(procedural safeguards are due to pretrial detainees, who
are accused, but not yet been proven guilty of an offense, to
ensure due process); United States v. Heard, 3 M.J. 14, 20
(C.M.A. 1977) (“[U]nless confinement prior to trial is com-
pelled by a legitimate and pressing social need sufficient to
overwhelm the individual’s right to freedom—given the fact
that probable cause exists to believe he has committed a
crime—restrictions unnecessary to meet that need are in the
nature of intolerable, unlawful punishment.”); Bell v. Wolf-
ish, 441 U.S. 520, 535–539 (1979) (recognizing that “[f]or
under the Due Process Clause, a detainee may not be pun-
ished prior to an adjudication of guilty in accordance with
due process of the law”); see also Article 13, UCMJ, 10
U.S.C. § 813 (2012) (proscribing pretrial punishment). We
agree with Chief Judge Drew, Katso III, No. ACM 38005
(rem), slip op. at 11−14 (Drew, C.J., dubitante) (opining that
Appellee remained an adjudged and sentenced prisoner until
appellate review was final and R.C.M. 305 did not apply).
Consequently, interposing the rule-based seven-day hearing
requirement from R.C.M. 305(i)(2) in this case, which result-
ed in rule-based day-for-day credit under R.C.M. 305(j)(2)
and R.C.M. 305(k) for failure to comply with procedures that
did not apply to Appellee’s situation, was error.
Moreover, the AFCCA’s reliance on Moore and Miller to
impose the requirements of R.C.M. 305 in toto was equally
unfounded. Neither case purported to impose the entirety of
R.C.M. 305 procedural requirements or penalties in a search
for “a practical means ... to release accused servicemembers
5
United States v. Katso, No. 17-0326/AF
Opinion of the Court
from confinement pending appeal in meritorious cases.”
Moore, 30 M.J. at 253.
And, in any event, Moore was decided prior to the prom-
ulgation of Article 57a(c), UCMJ, which provided such a
practical means. Congress established Article 57a(c), UCMJ,
to govern the treatment of convicted prisoners where “the
sentence to confinement has been ordered executed, but in
which review of the case under ... (article 67(a)(2)) is pend-
ing.” Article 57a(c), UCMJ, permits “the Secretary con-
cerned” to “defer further service of the sentence to confine-
ment while that review is pending.” In other words,
convicted prisoners may seek deferral of confinement pend-
ing review of a decision favorable to the accused certified to
this Court by TJAG and the relevant secretary may grant
such deferral and order the prisoner released.
Miller was decided after Article 57a(c), UCMJ, was en-
acted, and opined that, upon TJAG’s certification to this
Court of a favorable decision to an accused from a Court of
Criminal Appeals (CCA), the accused must “be released in
accordance with that decision or a hearing on continued con-
finement be conducted under RCM 305.” Miller, 47 M.J. at
362. But even Miller did not purport to hold that all the pro-
cedures and penalties contained within R.C.M. 305 traveled
along with a R.C.M. 305-styled continued confinement hear-
ing. Moreover, Miller failed to address Article 57a, UCMJ,
let alone its statutory primacy on the question of deferral of
sentence, including confinement, during the pendency of an
Article 67(a)(2), UCMJ, appeal to this Court.
We have no doubt that where a prisoner whose “sentence
to confinement has been ordered executed, but in which
review of the case under ... (article 67(a)(2)) is pending,”
seeks a continued confinement hearing, the language of
Article 57a(c), UCMJ, is broad enough to permit such a
hearing so that the relevant secretary can determine
whether to release the prisoner in accordance with Article
57a(c), UCMJ. But the statute is silent on how or when the
determination to release is to be made, and neither the
President nor a majority of the service secretaries have
promulgated procedural rules or remedies implementing the
6
United States v. Katso, No. 17-0326/AF
Opinion of the Court
statute to address these questions.3 While such guidance
would be both helpful and appropriate, see, e.g., United
States v. Kelson, 3 M.J. 139, 140−42 (C.M.A. 1977); Article
36, UCMJ, 10 U.S.C. § 836 (2012); Article 140, UCMJ, 10
U.S.C. § 940 (2012), the AFCCA itself acted ultra vires in
imposing the procedural requirements and penalties of
R.C.M. 305 on the Government. Barker v. Wingo, 407 U.S.
514, 523 (1972) (concluding that a court should “confine [its]
efforts” in the adjudicative process rather than engage in
legislative or rulemaking activity).
Finally, even assuming arguendo that the Government
should have held a continued confinement hearing sua
sponte, within seven days or otherwise, Appellee suffered no
prejudice from its failure to do so. Article 59(a), UCMJ; see
United States v. Ward, 74 M.J. 225, 227 (C.A.A.F. 2015)
(“We review prejudice determinations under a de novo
standard of review.” (citation omitted)). A continued con-
finement hearing was held when Appellee requested it. And
that hearing concluded that Appellee was not entitled to be
released. Thus, in the end, since Appellee’s sentence was ef-
fectively restored by this Court, Katso II, 74 M.J. at 284, the
time Appellee served between certification and the confine-
ment hearing was in accordance with his adjudged and ap-
proved sentence. We conclude that the AFCCA erroneously
awarded Appellant confinement credit when none was due.4
3 The Secretary of the Navy has promulgated the following
rule: “[d]eferment requests pursuant to Article 57a(c) shall be ad-
dressed to the Secretary of the Navy via the Judge Advocate Gen-
eral (OJAG Code 20).” Dep’t of the Navy, Judge Advocate General
Instr. 5800.7F, Manual of the Judge Advocate General para.
0155a.b (June 26, 2012) (JAGMAN).
4 Appellee’s motion to dismiss the certified issues, Katso,
17-0326/AF, App. Mot. to Dismiss (Jan. 17, 2018), is denied; Ap-
pellee’s motion to supplement the record, Katso, 17-0326/AF, App.
Mot. to Supp. (Jan. 29, 2018), is granted. By answering the certi-
fied questions, we neither rule on a moot question nor render an
advisory opinion in this case. United States v. Chisholm, 59 M.J.
151, 152 (C.A.A.F. 2003); cf. United States v. Clay, 10 M.J. 269,
269 (C.M.A. 1981) (per curiam); United States v. McIvor, 21
C.M.A. 156, 156, 44 C.M.R. 210, 210 (1972). As evident from the
supplement to the record, which the Government inexplicably op-
poses our review of, Katso, 17-0326/AF, Answer to App. Mot. to
7
United States v. Katso, No. 17-0326/AF
Opinion of the Court
Therefore, we answer Issues I and II in the affirmative
and Issue III in the negative.
III. Judgment
The decision of the United States Air Force Court of
Criminal Appeals is affirmed with respect to the findings
and sentence, but it is reversed as to the erroneous action
taken granting 365 days of administrative credit toward Ap-
pellee’s sentence to confinement.
Supp. (Feb. 2, 2018), Appellee is on Mandatory Supervised Re-
lease (MSR), which continues until “expiration of [his] sentence to
confinement.” Dep’t of the Air Force, Instr. 31-105, Security, Air
Force Corrections System para. 12.24 (June 15, 2015, as amended
by Air Force Guidance Memorandum 2017-01, June 28, 2017); see
also Dep’t of Defense, Instr. 1325.07, Administration of Military
Correctional Facilities and Clemency and Parole Authority, Enclo-
sure 3, at 94 (Mar. 11, 2013, incorporating Change 2, Sept. 22,
2017) (MSR can be revoked, requiring a servicemember to serve
the remainder of his confinement sentence); United States v. Pena,
64 M.J. 259, 262 (C.A.A.F. 2007); Moultrie v. Sec. of the Army, 723
F. Supp. 2d 1230, 1235−37 (C.D. Cal. 2010) (habeas petition not
moot because petitioner was still in military “custody” while on
MSR). Thus, given the nature of the MSR program, this Court’s
resolution of the certified issues would still result in a “material
alteration of the situation for the accused,” in the form of Appel-
lee’s final sentence to confinement affirmed on appeal. Clay, 10
M.J. at 269 (internal quotation marks omitted) (quoting McIvor,
21 C.M.A. at 158, 44 C.M.R. at 212).
8