United States v. Speight, NMCCA No. 202000099
Opinion of the Court
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Malcolm E. SPEIGHT
Corporal (E-4), U.S. Marine Corps
Appellant
No. 202000099
Decided: 30 March 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
John P. Norman (arraignment and trial)
Stephen F. Keane (motions)
Sentence adjudged 2 March 2020 by a general court-martial convened
at Marine Corps Air Station Yuma, Arizona, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: reduction to
E-1, confinement for 9 months, and a bad-conduct discharge. 1
For Appellant:
Lieutenant Commander Jonathan Riches, JAGC, USN
1 The military judge awarded a dishonorable discharge and 18 months confine-
ment. However, the convening authority suspended confinement in excess of 9
months and approved only a bad-conduct discharge pursuant to a pretrial agreement.
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United States v. Speight, NMCCA No. 202000099
Opinion of the Court
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Major Clayton L. Wiggins, USMC
Chief Judge MONAHAN delivered the opinion of the Court, in which
Senior Judge STEPHENS and Judge DEERWESTER joined.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
MONAHAN, Chief Judge:
Appellant was convicted, pursuant to his pleas, of one specification of
assault consummated by a battery, one specification of assault consummated
by a battery upon a spouse, and one specification of aggravated assault by
strangulation, in violation of Article 128, Uniform Code of Military Justice
[UCMJ]. 2
Appellant asserts one assignment of error: he should have been awarded
66 days of confinement credit for pretrial confinement on unrelated charges
that were later dismissed. We find no prejudicial error and affirm.
I. BACKGROUND
Following an investigation conducted by the Naval Criminal Investigative
Service [NCIS], multiple charges against Appellant were preferred and later
referred to a general court-martial [GCM], for acts of domestic abuse that
Appellant committed against his wife from August 2017 through February
2019. Appellant was not ordered into pretrial confinement based on these
charges.
Several months later, Appellant received non-judicial punishment [NJP]
for unrelated misconduct: two specifications of being absent without leave
and one specification of wrongful use of marijuana. Appellant’s punishment
2 10 U.S.C. § 928.
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consisted of reduction in rank to E-4, forfeiture of $1,277.00 pay per month
for two months, and 60 days of restriction.
Approximately two weeks later, Appellant was ordered into pretrial
confinement after he was caught wearing civilian attire while on restriction
and evidence surfaced of his continued drug abuse. Charges related to this
additional misconduct were subsequently referred to a special court-martial
[SPCM]. Appellant remained in pretrial confinement for 66 days, until the
date of his GCM guilty plea and sentencing for the domestic violence charges.
Appellant’s SPCM charges were withdrawn and dismissed three days later.
During Appellant’s GCM guilty plea and sentencing hearing, his civilian
defense counsel [CDC] explicitly and repeatedly agreed that his pretrial
confinement was unrelated to the case at hand and, thus, did not merit the
awarding of confinement credit.
II. DISCUSSION
A. Appellant Affirmatively Waived the Issue of Pretrial Confinement
during His Guilty Plea Hearing
Whether an appellant has waived an issue is a legal question that this
Court reviews de novo. 3
“In absence of an explicit prohibition, a party may knowingly and volun-
tarily waive . . . a nonconstitutional right in a [pretrial agreement].” 4 “When
. . . appellant intentionally waives a known right at trial, it is extinguished
and may not be raised on appeal.” 5 This is for good reason, as “the purpose of
the so-called raise-or-waive rule is to promote efficiency of the entire justice
system by requiring the parties to advance their claims at trial, where the
underlying facts can best be determined.” 6
Throughout the GCM guilty plea and sentencing hearing, CDC made it
clear that Appellant did not seek confinement credit for his time in pretrial
confinement. Prior to the entry of pleas, when the military judge asked for
confirmation “that there was no pretrial confinement credit under U.S. v.
3 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).
4 United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009).
5 Id. at 313.
6 United States v. King, 58 M.J. 110, 114 (C.A.A.F. 2003).
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Opinion of the Court
Allen[ 7] that needed to be adjudged or ordered,” CDC concurred that there
was not. 8 Later, at the start of the presentencing hearing, the military judge
confirmed that CDC agreed Appellant was not entitled to any pretrial
confinement credit for the unrelated charges. 9 Furthermore, when CDC
sought to enter Appellant’s Prisoner Evaluation Reports as sentencing
evidence, he specified that their purpose was for extenuation and mitigation
evidence, rather than to claim confinement credit. The CDC and military
judge had the following exchange:
CDC: [W]e are simply offering them for [extenuation and
mitigation] with regard to consideration of what an
appropriate sentence would be in the collection of the
whole, as opposed to Allen credit specifically for these
offenses.
MJ: Very well. I understand the purpose offered and will
consider them as mitigation in this case as to every-
thing that’s going on in the accused’s life not just—but
not as anything related to Allen credit or pretrial con-
finement for this case. 10
Thus, Appellant did not merely fail to raise the issue, which would have
resulted in a forfeiture of the right. Rather, he affirmatively waived the issue
by consciously and deliberately declining to seek the credit.
Recently, in United States v. Haynes, the Court of Appeals for the Armed
Forces [CAAF] determined that the appellant waived any entitlement to
credit under United States v. Pierce 11 after his defense counsel affirmatively
agreed with the military judge’s pretrial confinement credit calculation.
CAAF observed, “This is not simply a case where defense counsel failed to
lodge an objection. Instead, the military judge directly asked defense counsel
if he agreed with the proposed amount of confinement credit and defense
counsel expressly indicated that he did.” 12 Although the question in Haynes
7 United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
8 R. at 76-77.
9 Id. at 176.
10 Id. at 185-86.
11 United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).
12 United States v. Haynes, 79 M.J. 17, 19 (C.A.A.F. 2019).
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revolved around Pierce, and not Allen, credit, it is clear that our superior
court viewed the matter more broadly. It reasoned, “Since Pierce credit is a
type of confinement credit, we think it appropriate to treat the exchange
between the military judge and counsel as one concerning confinement credit
in the broad sense.” 13 Following the Haynes Court’s reasoning, we hold that
Appellant affirmatively waived the issue of pretrial confinement credit at
trial.
Appellant requests that we decline to apply waiver in this case, particu-
larly as he believes the military judge misapplied the law when he did not
provide him credit for his pretrial confinement served. Appellant bolsters this
argument pointing to the fact that he also submitted the matter of pretrial
confinement to the convening authority after the unrelated charges were
dismissed. He argues that by doing so, he eliminated the threat that he
would receive “double credit” for his time in pretrial confinement. 14
CAAF held in United States v. Chin that we can look past an appellant’s
waiver of an issue to address an error in the course of performing our plenary
review of the record under Article 66, UCMJ. 15 However, as discussed infra,
we find that there was no misapplication of the law when neither the military
judge nor the convening authority gave Appellant credit for pretrial
confinement he served for misconduct unrelated to the offenses that were the
subject of this court-martial. Thus, we choose to not disregard Appellant’s
waiver of pretrial confinement credit in this case.
B. Assuming Arguendo that Appellant did not Waive the Issue of
Pretrial Confinement Credit, We Find that He Still would not have
been Entitled to Such Credit
We review the question of whether Appellant is entitled to pretrial con-
finement credit de novo. 16 Appellant argues he was entitled to pretrial
confinement credit under both 18 U.S.C. § 3585(b) and the Rule for Courts-
Martial [R.C.M] 1102(b)(2)(B). We disagree with both of those propositions.
13 Id. at 20.
14 Appellant’s Reply Br. at 16.
15 75 M.J. 220, 222-23 (C.A.A.F. 2016).
16 United States v. Smith, 56 M.J. 290, 292 (C.A.A.F. 2002).
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1. Appellant is not entitled to credit under 18 U.S.C. § 3585(b) because the
Defense Sentence Computation Manual no longer applies that statute to
servicemembers serving confinement as a result of a court-martial sentence
Appellant first claims he is entitled to pretrial confinement under 18
U.S.C. § 3585(b), the successor statute to 18 U.S.C. § 3568. According to
Appellant, military case law—specifically United States v. Allen and its
progeny—adopted the protections granted by 18 U.S.C. § 3568, and thus we
should similarly adopt those promulgated by 18 U.S.C. § 3585(b). The original
statute mandated “the Attorney General shall give any . . . such person
[sentenced to imprisonment] credit toward service of his sentence for any
days spent in custody in connection with the offense or acts for which the
sentence was imposed.” 17 The law excluded the military from its applicability,
providing an explicit caveat in its definition of ‘offense’ that precluded “an
offense triable by court-martial.” 18 However, in Allen, the Court of Military
Appeals found that the Department of Defense [DoD] voluntarily adopted the
statute’s calculation of pretrial confinement credit, through its issuance of
Dep’t of Def. Instr. 1325.4, Treatment of Military Prisoners and Administra-
tion of Military Correction Facilities (Oct. 7, 1968) [DoDI 1325.4]. 19
The instruction directed:
Computation of Sentences. Procedures employed in the
computation of sentences will be in conformity with those pub-
lished by the Department of Justice, which govern the compu-
tation of federal prisoners and military prisoners under the ju-
risdiction of the Justice Department. 20
Analyzing that section, the Allen Court reasoned “we must be judicially
prudent and read the instruction as written, as voluntarily incorporating the
pretrial-sentence credit extended to other Justice Department convicts.” 21
Since then, as Appellant points out, Congress further expanded 18 U.S.C.
§ 3568’s protections by replacing it with 18 U.S.C. § 3585. This statute kept
17 18 U.S.C. § 3568 (1966)
18 Id.
19 17 M.J. at 127.
20 Id. (quoting DoDI 1325.4, para. 6).
21 Id. at 128.
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Opinion of the Court
the military exclusion, 22 but increased the eligibility for confinement credit to
include confinement resulting from “any other charge for which the defendant
was arrested after the commission of the offense for which the sentence was
imposed.” 23
Although it is true Congress broadened the scope of the statute’s applica-
bility for individuals sentenced in civilian federal court, it should not be
assumed that the DoD voluntarily incorporated the statute the way it did for
its predecessor. The Allen court predicated its holding with a disclaimer that
they came to its decision “in the absence of any clear signal of intent
otherwise on the part of the Secretary of Defense” and that they would read
DoD instructions “as they appear on their face.” 24 Thus, Allen’s holding is tied
not only to applicable federal statutes, but also to the intent of the DoD, as
expressed in its instructions.
Although Appellant is correct that the central holding of Allen remains
intact—that an accused should receive credit for time spent in pretrial
confinement—it is inaccurate to conclude that the circumstances when it was
decided remain the same. In the thirty-five plus years since Allen, the DoD
has indeed provided more guidance regarding confinement credit, particular-
ly through its implementation of the DoD Sentence Computation Manual
[DoDM 1325.07]. 25 Among other changes, while the previous 1968 instruction
specifically incorporated the Department of Justice’s sentence computation
procedures [prompting the Allen court to reach the conclusion it did], the
updated version pointedly makes no such mention. Instead the current
manual dictates that “the judge will direct credit for each day spent in
pretrial confinement or under restriction tantamount to confinement . . . for
crimes for which the prisoner was later convicted.” 26
22 18 U.S.C. § 3551(a) (“Except as otherwise specifically provided, a defendant
who has been found guilty of an offense described in any Federal statute . . . other
than an Act of Congress applicable exclusively in the District of Columbia or the
Uniform Code of Military Justice, shall be sentenced in accordance with the
provisions of this chapter”).
23 18 U.S.C. § 3585(b) (emphasis added).
24 17 M.J. at 126.
25 Dep’t of Def. Man. 1325.07, DoD Sentence Computation Manual (Jul. 27, 2004
& Ch. 3, Sep. 26, 2018).
26 Id. at para. C2.4.2 (emphasis added).
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This Court has already held that DoDM 1325.07 answers many of the
questions regarding when to apply Allen credit, recognizing how the DoD
Sentence Computation Manual has narrowed the class of qualifying
accused. 27 Much like Appellant here, in United States v. Atkinson, the
appellant sought credit for a period of confinement resulting from misconduct
separate and apart from the misconduct for which he was ultimately
convicted. 28 The appellant was declared a deserter after a lengthy period of
unauthorized absence. Ultimately apprehended, the appellant spent 62 days
at a civilian detention facility before returning to his unit. He then received
NJP for that unauthorized absence, but subsequently faced court-martial the
following year for entirely separate charges.
On appeal, Atkinson argued that he should have received Allen credit for
the 62 days he spent in civilian confinement related to his unauthorized
absence. We rejected that argument, pointing to the limitations enacted by
DoDM 1325.07, and observed, “day-for-day credit is generally due in the
military justice system, but for a range of offenses narrower than that
applicable to [federal] prisoners.” 29 Citing to the provision “that military
judges ‘will direct credit for each day spent in pretrial confinement . . . for
crimes for which the prisoner was later convicted,’ ” 30 we rejected Atkinson’s
claim that he was entitled to credit for pretrial confinement that was
unrelated to his ultimate conviction. We likewise find Appellant’s similar
claim to be without merit. 31
27 United States v. Atkinson, 74 M.J. 645, 647-48 (N-M. Ct. Crim. App. 2015).
28 Id. at 645.
29 Id. at 648.
30 Id. at 647 (citing to DoDM 1325.7 at para. C2.4.2 (emphasis added)).
31 It may be argued that Atkinson was also bolstered by the fact that his prior
confinement was served in a civilian facility. Not only did the plain language of
DoDM 1325.07 disentitle the Atkinson appellant from earning pretrial credit, his
particular form of pretrial confinement was unambiguously denied in DoDM
1325.07’s corresponding instruction, which states:
Notwithstanding any other provision of this instruction or [DoDM
1325.07] if a prisoner (accused) is confined in a non-military facility
for a charge or offense for which the prisoner had been arrested after
the commission of the offense for which the military sentence was
imposed, the prisoner (accused) shall receive no credit for such time
confined in the non-military facility when calculating his or her sen-
tence adjudged at court-martial.
Footnote continued next page.
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2. Appellant is also not entitled to credit in accordance with R.C.M.
1102(b)(2)
We also find Appellant’s argument that he should have received confine-
ment credit under R.C.M. 1102(b)(2) to be unpersuasive. Appellant points to
subsection R.C.M. 1102(b)(2)(C) which specifies five different situations
where confinement credit is to be excluded. 32 Confinement served for
unrelated misconduct is not among these exceptions, and therefore, Appellant
argues, we should infer that he is eligible to receive the credit.
Dep’t of Def. Instr. 1325.07, Administration of Military Correction Facilities and
Clemency and Parole Authority, encl. 2, para. 3.c (Mar. 11, 2013 & Ch. 4, Aug. 19,
2020).
32 These exclusions are:
(i) Periods during which the sentence to confinement is suspended
or deferred;
(ii) Periods during which the accused is in the custody of civilian
authorities under Article 14 from the time of the delivery to the re-
turn to military custody, if the accused was convicted in the civilian
court;
(iii) Periods during which the accused is in custody of civilian or
foreign authorities after the convening authority, pursuant to Article
57(b)(2), has postponed the service of a sentence to confinement;
(iv) Periods during which the accused has escaped, or is absent
without authority, or is absent under a parole that a proper authority
has later revoked, or is released from confinement through misrepre-
sentation or fraud on the part of the prisoner, or is released from con-
finement through misrepresentation or fraud on the part of the pris-
oner, or is released from confinement upon the prisoner’s petition for
a writ under a court order that is later reversed; and
(v) Periods during which another sentence by court-martial to
confinement is being served. When a prisoner serving a court-martial
sentence to confinement is later convicted by a court-martial of an-
other offense and sentenced to confinement, the later sentence inter-
rupts the running of the earlier sentence. Any unremitted remaining
portion of the earlier sentence will be served after the later sentence
is fully executed.
R.C.M. 1102(b)(2)(C).
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However, as the Government points out, this logic is problematic. Specifi-
cally, it argues a plain language reading of R.C.M. 1102(b)(2)(B) contradicts
Appellant’s reading of 1102(b)(2)(C). This rule provides,
Calculation. Any period of confinement included in the sen-
tence of a court-martial begins to run from the date the sen-
tence is announced by the court-martial. If the accused was
earlier ordered into confinement under R.C.M. 305, the ac-
cused’s sentence shall be credited one day for each day of con-
finement already served. 33
We read statutes “as a harmonious whole manifesting one general pur-
pose and intent. Just as a single word cannot be read in isolation, nor can a
single provision of a statute.” 34 While Appellant stresses that R.C.M.
1102(b)(2)(B) states an accused “shall be credited one day for each day of
confinement already served,” the preceding sentence provides the necessary
context to know for which confinement this rule applies. Thus, the phrase
“confinement already served” relates back to confinement deriving from the
court-martial conviction. As such, we find that R.C.M. 1102(b)(2)(B) does not
support Appellant’s argument that he is entitled to credit for pretrial
confinement he served unrelated to the offenses that were the subject of this
court-martial.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 35 Accordingly, the findings and sentence are AFFIRMED.
33 R.C.M. 1102(b)(2)(B).
34United States v. Quick, 74 M.J. 517, 520 (N-M. Ct. Crim. App. 2014) (quoting
Smith v. United States, 508 U.S. 223, 233 (1993)) (internal citation and quotation
marks omitted).
35 UCMJ arts. 59, 66.
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FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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