UNITED STATES, Appellee
v.
William J. KREUTZER Jr., Sergeant
U.S. Army, Appellant
No. 11-0231
Crim. App. No. 9601044
United States Court of Appeals for the Armed Forces
Argued October 24, 2011
Decided February 2, 2012
STUCKY, J., delivered the opinion of the Court, in which RYAN,
J., and COX, S.J., joined. ERDMANN, J., filed a dissenting
opinion, in which BAKER, C.J., joined.
Counsel
For Appellant: Captain Barbara A. Snow-Martone (argued);
Lieutenant Colonel Jonathan F. Potter (on brief); Colonel Mark
Tellitocci, Lieutenant Colonel Peter Kageleiry, Major Laura R.
Kesler, and Captain Jess B. Roberts.
For Appellee: Captain Chad M. Fisher (argued); Colonel Michael
E. Mulligan (on brief); Major Ellen Jennings and Major Adam S.
Kazin.
Military Judges: P. E. Brownback III (trial) and Patrick J.
Parrish (rehearing)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Kreutzer, No. 11-0231/AR
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether Appellant was
entitled to additional confinement credit under Rule for Courts-
Martial (R.C.M.) 305, or Article 13, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 813 (2006), after prison officials
at the United States Disciplinary Barracks retained Appellant on
death row despite the United States Army Court of Criminal
Appeals (CCA) setting aside Appellant’s death sentence. We hold
that Appellant was not entitled to such credit because he was
still subject to lawful confinement as a prisoner found guilty
of a number of offenses. Therefore, Appellant’s confinement was
outside the scope of R.C.M. 305 and Article 13, which only apply
to pretrial confinees.
I.
A.
We previously summarized the result of Appellant’s initial
trial:
Sergeant (SGT) William J. Kreutzer Jr. opened
fire with an automatic weapon on personnel in his
brigade when they were in formation commencing a unit
run. He was subsequently charged with one
specification of premeditated murder, eighteen
specifications of attempted premeditated murder, one
specification of violation of a lawful general
regulation, one specification of larceny of Government
munitions, four specifications of maiming, and
eighteen specifications of aggravated assault, in
violation of Articles 118, 80, 92, 121, 124, and 128,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
918, 880, 892, 921, 924, 928 (2000), respectively.
2
United States v. Kreutzer, No. 11-0231/AR
The charges were referred to a general court-martial
with instructions that the case was “[t]o be tried as
a capital case.”
Kreutzer pleaded guilty to one specification of
murder while engaged in an act inherently dangerous to
another (as a lesser included offense of premeditated
murder), eighteen specifications of assault with a
loaded firearm (as a lesser included offense of
attempted premeditated murder), one specification of
violating a lawful general regulation, and one
specification of larceny of Government munitions. He
was convicted of one specification of premeditated
murder, eighteen specifications of attempted
premeditated murder, one specification of violating a
lawful general regulation, and one specification of
larceny of Government munitions. A unanimous twelve-
member court of officer and enlisted members sentenced
Kreutzer to death, a dishonorable discharge,
forfeiture of all pay and allowances, and reduction to
E–1. The convening authority approved the sentence as
adjudged.
United States v. Kreutzer, 61 M.J. 293, 294–95 (C.A.A.F. 2005)
(noting further that the maiming and aggravated assault
specifications were consolidated with the attempted premeditated
murder specifications and provisionally dismissed).
B.
After Appellant’s initial trial, the CCA determined that
the sentence had to be set aside because counsel had been
ineffective by failing to conduct sufficient investigation into
Appellant’s background for sentencing. United States v.
Kreutzer, 59 M.J. 773, 775 (A. Ct. Crim. App. 2004).
Furthermore, a majority of that court also found that the
military judge’s erroneous denial of Appellant’s request for an
3
United States v. Kreutzer, No. 11-0231/AR
expert in mitigation required relief, which the CCA provided by
setting aside all of the contested findings. Id.
The CCA only affirmed those findings to: violation of a
lawful general regulation, larceny of military property,
seventeen specifications of assault with a loaded firearm, and
murder while engaging in an inherently dangerous act to another.
Id. at 784. A rehearing on findings and sentence was
permitted. Id.
C.
After the CCA’s decision, the Government timely moved for
en banc reconsideration, which was denied. The Judge Advocate
General of the Army then certified the case to this Court. We
affirmed the CCA’s decision. Kreutzer, 61 M.J. at 306.
While the Government’s motion for reconsideration to the
CCA and certification to this Court were pending, Appellant
remained on death row. Appellant made requests to prison
officials through the appropriate channels to remove him from
death row. Although prison officials acknowledged Appellant’s
requests, they did not take Appellant off death row.
Appellant filed for a writ of mandamus with the CCA
requesting an order that he be transferred from death row to the
general population, which the CCA denied for lack of
jurisdiction. Kreutzer v. Harrison, No. 20040953, 2004 CCA
LEXIS 352, at *4, 2004 WL 5863309, at *2 (A. Ct. Crim. App.
4
United States v. Kreutzer, No. 11-0231/AR
Sept. 24, 2004) (unpublished). Appellant filed a similar
petition for a writ of mandamus with this Court, and we granted
relief to the extent that Appellant was to be removed “from
death row at the United States Disciplinary Barracks and
place[d] . . . in appropriate custody in light of the
circumstances and status of his case.” Kreutzer v. United
States, 60 M.J. 453 (C.A.A.F. 2005) (summary disposition). The
basis of that opinion was that Army regulations prohibited the
commingling of prisoners under a sentence of death with
prisoners who were not. Id. (citing Dep’t of the Army Reg. (AR)
190-47, The Army Corrections System ¶ 12-6.b (Apr. 5, 2004)).
Shortly after this Court issued the writ of mandamus, Appellant
was removed from death row and classified as a medium custody
inmate.
D.
At the findings and sentence rehearing, Appellant pled
guilty to sixteen specifications of assault in which grievous
bodily harm was intentionally inflicted with a loaded firearm,
one specification of assault with a dangerous weapon, one
specification of attempted premeditated murder, and one
specification of premeditated murder. A military judge sitting
as a general court-martial found Appellant guilty of seventeen
specifications of attempted premeditated murder and one
specification of assault with a means likely to produce death or
5
United States v. Kreutzer, No. 11-0231/AR
grievous bodily harm. Appellant was sentenced to a dishonorable
discharge, confinement for life, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade.
During the rehearing, Appellant made a motion for
confinement credit based on, inter alia, a violation of R.C.M.
305 and Article 13. Appellant argued that he was entitled to
credit for being confined on death row after the CCA set aside
his death sentence. The military judge denied Appellant’s
motion because he found that Article 13 and R.C.M. 305 had not
been violated, and the CCA, after recognizing Appellant’s motion
below for additional credit, affirmed the findings of guilty and
the sentence without modification, United States v. Kreutzer,
No. 9601044, slip op. at 2 (A. Ct. Crim. App. Nov. 5, 2010).
II.
Appellant argues that his status changed from sentenced
prisoner to pretrial confinee as a matter of law thirty days
after the sentence from his first court-martial was set aside.
He cites our decisions in United States v. Miller, 47 M.J. 352
(C.A.A.F. 1997), and United States v. Combs, 47 M.J. 330
(C.A.A.F. 1997), in support of this proposition. We do not
agree. Neither case is apposite to the instant one.
Miller was a case in which the Court of Criminal Appeals
reduced the appellant’s sentence of confinement to a period of
time which the appellant had already served. 47 M.J. at 360
6
United States v. Kreutzer, No. 11-0231/AR
(noting that Miller’s release date was calculated to be the day
after the CCA released its opinion). Because the appellant had
clearly served his full term of confinement for the offenses of
which he stood convicted, he could no longer be subject to
punishment. Id. Therefore, under those circumstances, the
appellant was entitled either to a hearing under R.C.M. 305 or
to be released. Id. at 361–62.
In Miller, we recognized that appellants have an interest
in a favorable inchoate decision of the CCA that would result in
an appellant’s release from confinement, but that interest only
becomes sufficiently weighty to warrant action when the Judge
Advocate General decided on a course of action to pursue (appeal
or abide by the CCA decision) or the thirty-day period for
appeal had passed.1 Id. In this case, Appellant’s sentence to
confinement was not reassessed to a term he had already served;
thus, Miller is inapplicable to the situation presented here.
In Combs, the CCA set aside the appellant’s unpremeditated
murder conviction, affirmed his convictions for willful
disobedience of a lawful order and battery, and set aside his
sentence. 47 M.J. at 330–31. Appellant was not confined during
1
The Miller majority cited Moore v. Adkins, 30 M.J. 249 (C.M.A.
1990), a case in which the Court of Military Review had
dismissed all charges on statute of limitations or factual
sufficiency grounds, leaving the accused without a conviction.
Because Appellant here remained convicted of a number of
offenses, Moore is also inapplicable to this case.
7
United States v. Kreutzer, No. 11-0231/AR
a rehearing on the unpremeditated murder charge and sentencing,
but his rank was reduced despite the absence of a lawfully
adjudged sentence. Id. at 331. A two-judge plurality of this
Court opined that the appellant was punished under Article 13 by
being stripped of his rank during this period. Id. at 334.
Chief Judge Cox, concurring in the result, explicitly refused to
find whether this constituted punishment under Article 13 or
simply credit for deprivation tantamount to confinement under
United States v. Allen, 17 M.J. 126 (C.M.A. 1984). Combs, 47
M.J. at 334 (Cox, C.J., concurring).
Regardless of whatever precedential value Combs may have,
given its status as a plurality opinion, it too is not on point,
because Combs was released from confinement after his sentence
was set aside. As with the appellant in Miller, Combs had
already served a period of confinement -- a little over two
years -- that was reasonably likely to have met or exceeded any
sentence he would have received on his remaining charges.
Combs, 47 M.J. at 333 (noting that Combs had served some two
years of his sentence); id. at 330–31 (observing that Combs
remained convicted of battering his three-year-old daughter and
willfully disobeying a lawful order); see also Manual for
Courts-Martial, United States (MCM) pt. IV, ¶¶ 15.e.(5) &
54.e.(7) (1984 ed.) (stating the maximum period of confinement
for willful disobedience of a noncommissioned officer was one
8
United States v. Kreutzer, No. 11-0231/AR
year and for battery of a child was two years). After the
sentence was set aside, the government released Combs instead of
holding him after an R.C.M. 305 hearing, which was within its
prerogative. 47 M.J. at 331.
In this case, the CCA affirmed Appellant’s convictions of
one specification of murder while engaged in an inherently
dangerous act, seventeen specifications of assault with a loaded
firearm, one specification of violation of a lawful general
order, and one specification of larceny of government property.
Kreutzer, 59 M.J. at 784–85. The capital sentence was set
aside, and a rehearing was permitted to prove up the greater
offenses and to resentence Appellant. Id. at 784–85. Appellant
still had the possibility of a life sentence pursuant to the
offenses to which he pled guilty. MCM pt. IV, ¶ 43.e.(2) (2008
ed.).
Article 13, by its terms, only applies to persons “held for
trial.”2 United States v. Inong, 58 M.J. 460, 463 (C.A.A.F.
2003) (“Article 13 prohibits . . . the intentional imposition of
punishment on an accused before his or her guilt is established
at trial . . . .”). Under the circumstances of this case,
Appellant was a prisoner convicted of very serious offenses with
2
The dissent’s reliance on Army regulations to interpret whether
the individual is a pretrial confinee or an adjudged prisoner
within the scope of Article 13 is unhelpful, because
9
United States v. Kreutzer, No. 11-0231/AR
a temporarily inchoate sentence.3 He had not requested, and did
not request, release from confinement. The fact that the
capital sentence had been set aside, for reasons peculiar to
capital litigation, did not convert him from an adjudged
prisoner to a person held for trial as regards the offenses
which the CCA had affirmed.
At most, the retention of Appellant on death row prompts a
dispute not over punishment prior to trial (the concern of
Article 13) or of the inception and continuation of pretrial
confinement (the concern of R.C.M. 305) but of the proper level
of confinement. This decision is normally placed in the hands
of correctional authorities, but that discretion may be limited
by regulation. In our order of January 5, 2005, this Court
recognized that the confinement authorities had abused this
discretion, and we directed Appellant’s release from death row
because AR 190-47, ¶ 12-6.b, prohibited the commingling of death
row prisoners with other prisoners not subject to a death
sentence. Kreutzer, 60 M.J. at 453. But Appellant, as an
adjudged prisoner, received the only relief he was entitled to
for a violation of that regulation when this Court ordered that
“regulation[s] cannot change the statute.” Public Lands Council
v. Babbitt, 529 U.S. 728, 745 (2000).
3
As noted above, that temporarily inchoate sentence was
ultimately resolved to confinement for life, a dishonorable
discharge, forfeiture of all pay and allowances, and reduction
to E-1.
10
United States v. Kreutzer, No. 11-0231/AR
he be taken off death row. Since Appellant did not come within
the purview of Article 13, UCMJ, he is entitled to no relief
under it.
III.
The judgment of the United States Army Court of Criminal
Appeals is affirmed.
11
United States v. Kreutzer, No. 11-0231/AR
ERDMANN, Judge, with whom BAKER, Chief Judge, joins
(dissenting):
I respectfully dissent from the majority’s conclusion that
Kreutzer was not entitled to relief under Article 13, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 813, or Rule for
Courts-Martial (R.C.M.) 305, because he remained subject to
lawful confinement. The Army Court of Criminal Appeals (CCA)
set aside all of the contested findings and Kreutzer’s entire
sentence, not just the portion that applied to the death
penalty. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim.
App. 2004).1 Even though Kreutzer remained convicted of the non-
capital offenses to which he had pleaded guilty, the CCA
remanded his case for possible retrial on the offenses that were
set aside and a sentence rehearing.
As Kreutzer was subject to retrial on the offenses that had
been set aside and since he had not been sentenced, his trial
1
The court affirms the findings of guilty of the
Specification of Charge II and Charge II and the
Specification of Charge IV and Charge IV. The
remaining findings of guilty and the sentence are set
aside. The same or a different convening authority
may order a rehearing on Specification 16 of Charge I
as well as the set aside portions of Specifications 1-
15, 17, and 18 of Charge I and Charge I, the
Specification of Charge III and Charge III, and the
sentence. If the convening authority determines that
a rehearing on these findings is impracticable, he may
dismiss those offenses to which appellant pled not
guilty and order a rehearing on the sentence only.
59 M.J. at 784-85.
United States v. Kreutzer, No. 11-0231/AR
was not over and he reverted to the same status as a pre-trial
confinee, as correctly recognized by The Army Judge Advocate
General (TJAG).2 Therefore the confinement protections of both
Article 13, UCMJ, and R.C.M. 305 were available to him for the
confinement period in question. Because the government failed
to provide any reasons for keeping Kreutzer on death row while
he was not under sentence of death and since transfer to an
alternative placement at the United States Disciplinary Barracks
(USDB) was sufficient to ensure his presence at trial, I would
reverse the decision of the CCA and grant Kreutzer four days of
credit for each day he was held on death row after the CCA
decision vested.
The procedural history pertinent to this appeal is as
follows:
• March 11, 2004 –- The CCA sets aside the contested
findings and the sentence;
• April 7, 2004 -– The CCA grants the government’s
motion for a thirty-day extension of time in which to
file a motion for reconsideration;
• May 10, 2004 –- The government files a timely motion
for reconsideration with the CCA;
• June 22, 2004 –- The CCA denies the request for
reconsideration; TJAG orders Kreutzer released from
2
On June 22, 2004, following the issuance of the CCA decision,
TJAG ordered Kreutzer released from post-trial confinement,
which reflected a subsequent placement in pre-trial confinement.
On July 13, 2004, TJAG ordered an R.C.M. 305 pre-trial
confinement review.
2
United States v. Kreutzer, No. 11-0231/AR
post-trial confinement; Kreutzer is not moved from
death row;
• June 29, 2004 –- TJAG files a certificate for review
with the United States Court of Appeals for the Armed
Forces (CAAF);
• July 6, 2004 –- Kreutzer submits an Inmate Request
Slip to the USDB Commandant inquiring why he remained
on death row;
• July 12, 2004 –- USDB Deputy Commandant responded to
Kreutzer’s request, stating the Commandant had
requested a legal review of his case by the Fort
Leavenworth SJA office;
• July 13, 2004 –- TJAG revokes his June 22 order
releasing Kreutzer from post-trial confinement and
authorizes an R.C.M. 305 review;
• July 22, 2004 –- Kreutzer submits an Inmate Request
Slip to the Mental Health Clinic requesting assistance
in being transferred from death row;
• July 25, 2004 –- Kreutzer submits an Inmate Request
Slip asking to speak personally with the USDB
Commandant regarding his continued confinement on
death row;
• July 26, 2004 –- USDB Commandant informs Kreutzer he
will conduct an R.C.M. 305 review to determine if
continued confinement is necessary;
• July 27, 2004 –- In response to the notice of the
R.C.M. 305 review, Kreutzer submits a memorandum to
the USDB Commandant requesting to be transferred to
the general population until a final sentence is
determined;
• August 19, 2004 –- Kreutzer submits an Inmate Request
Slip to the USDB Staff Judge Advocate asking for a
status update on the R.C.M. 305 hearing;
• August 25, 2004 –- USDB Commandant issues his R.C.M.
305 decision which determined that continued
3
United States v. Kreutzer, No. 11-0231/AR
confinement is necessary but does not address
Kreutzer’s death row confinement;
• September 21, 2004 –- Kreutzer petitions the CCA for
extraordinary relief asking to be removed from death
row and placed in the general population;
• September 24, 2004 –- The CCA denies the petition for
lack of jurisdiction due to the certification to CAAF.
Kreutzer v. Harrison, No. ARMY MISC 20040953 (ARMY
9601044) (A. Ct. Crim. App. Sept. 24, 2004);
• September 29, 2004 –- Kreutzer petitions CAAF for
extraordinary relief asking to be removed from death
row;
• January 5, 2005 –- CAAF orders Kreutzer removed from
death row. Kreutzer v. United States, 60 M.J. 453
(C.A.A.F. 2005);
• January 13, 2005 –- Kreutzer is transferred from death
row to protective custody;
• August 16, 2005 –- CAAF affirms the CCA decision and
order of a rehearing on the sentence based on the
affirmed pleas or a rehearing on the greater offenses.
United States v. Kreutzer, 61 M.J. 293 (C.A.A.F.
2005);
• January 6, 2006 –- The convening authority orders
Kreutzer into pre-trial confinement, where he remained
until his rehearing.
At his retrial on the charges that were set aside by the
CCA, Kreutzer requested ten days of sentencing credit for each
of the 280 days he was confined on death row between the date he
believed the CCA decision became effective and the date of his
transfer off death row pursuant to this court’s January 5, 2005
order (April 11, 2004 – January 13, 2005). The military judge
denied this motion, stating that Kreutzer’s command “was not
4
United States v. Kreutzer, No. 11-0231/AR
required to release [him] from death row after the decision by
the Army Court of Criminal Appeals while the case was certified
by TJAG to the Court of Appeals of the Armed Forces [sic].” The
military judge also found that the USDB commander did not act in
bad faith by keeping Kreutzer on death row, therefore no relief
was warranted.
This case essentially presents two issues: first, whether
the government had an obligation to address Kreutzer’s continued
confinement on death row at some point following the CCA
decision which set aside his death sentence;3 and if so, is
Kreutzer entitled to additional pre-trial confinement credit for
the time he was held on death row after that decision.
a. Continued Confinement on Death Row
Contrary to the majority’s opinion, this court’s decision
in United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), is
directly applicable to this case. In Miller, this court held
that when a CCA issues an opinion favorable to the appellant,
two thirty-day periods run concurrently: the thirty-day period
3
It is important to note what this case is not about. It is not
about whether Kreutzer should have been released from
confinement after the CCA set aside his conviction for the
contested findings (which included all of the death sentence
eligible offenses) and the sentence. Kreutzer recognized that
he remained convicted of the offenses to which he had pleaded
guilty (all non-death sentence eligible offenses) and throughout
these proceedings has only requested that he be transferred from
death row after his death sentence was set aside pending further
appellate and trial proceedings.
5
United States v. Kreutzer, No. 11-0231/AR
to request reconsideration of the CCA decision (C.C.A. R. 19)
and the thirty-day period for certification to this court
(C.A.A.F. R. 19(a), 22(b)). Miller, 47 M.J. at 361. If the
service Judge Advocate General decides not to further pursue the
case by requesting reconsideration from the CCA or by filing a
certification with this court, (s)he must notify the convening
authority to comply with the CCA opinion or conduct an R.C.M.
305 hearing. Id.
Normally the two thirty-day periods will run concurrently.
However, if, as here, the government requests reconsideration of
the CCA decision, the two thirty-day periods discussed in Miller
are decoupled. If that request is denied, the government then
has thirty days from the date of the denial in which to certify
the case to this court pursuant to Rule 19 of this court’s rules
of practice and procedure. C.A.A.F. R. 19. Once TJAG certifies
the issues to this court or the thirty-day period ends without a
certification filing, whichever is first, Kreutzer’s interest in
the favorable decision of the court below (even if inchoate)
required either that he be transferred from death row or a
hearing under R.C.M. 305 be held to determine whether his
continued confinement on death row was appropriate. Miller, 47
M.J. at 362.
In Kreutzer’s case TJAG filed a timely request for
reconsideration at the CCA, which was denied. On June 28, 2004,
6
United States v. Kreutzer, No. 11-0231/AR
TJAG certified the issues to this court. Once the certification
was filed the government was required to conduct an R.C.M. 305
hearing to determine whether Kreutzer should remain on death row
pending the government’s appeal. Kreutzer first requested a
transfer from death row on July 6, 2004. While an R.C.M. 305
hearing was eventually conducted in August 2004, the decision
did not address Kreutzer’s sole request –- that he be
transferred from death row. Instead, the R.C.M. 305 decision
determined that further confinement was necessary –- a status
that Kreutzer had never challenged. Kreutzer then remained
confined on death row until seven days after this court ordered
his transfer in January 2005. Kreutzer v. United States, 60
M.J. 453 (C.A.A.F. 2005).
While the majority infers that Kreutzer remained subject to
post-trial confinement, that conclusion is not consistent with
the action of the CCA which set aside his sentence.4 According
4
The majority notes that “Article 13, by its terms, only applies
to persons ‘held for trial,’” citing United States v. Inong, 58
M.J. 460 (C.A.A.F. 2003). United States v. Kreutzer, __ M.J. __
(9) (C.A.A.F. 2012). While I agree that Article 13, UCMJ,
applies to persons “held for trial,” the difference in our
respective positions is when the trial terminates. I believe
that a trial under the UCMJ is not over until all charges have
been resolved and the sentence adjudged. The majority asserts
that the trial is over once guilt is established on some of the
charges, and Article 13, UCMJ, is therefore no longer
applicable. Id. at __ (9) (“‘Article 13 prohibits . . . the
intentional infliction of punishment on an accused before his or
her guilt is established at trial. . . .’” (quoting Inong, 58
M.J. at 463)). As support for this principle, Inong cites
7
United States v. Kreutzer, No. 11-0231/AR
to Dep’t of the Army, Reg. 190-47, Military Police, The Army
Corrections System, para. 3-1 (June 15, 2006) [hereinafter AR
Reg. 190-47], an accused who is confined pending preferral or
disposition of charges or trial by court-martial is a pre-trial
prisoner. An accused whose sentence has been announced in open
court but not approved by the convening authority is an adjudged
prisoner. Id. An accused becomes a sentenced prisoner when the
convening authority takes action to approve the confinement
portion of the sentence. Id.
The facts in United States v. Combs, 47 M.J. 330 (C.A.A.F.
1997), a plurality decision that was concurred in by then-Chief
Judge Cox, are directly analogous to Kreutzer’s situation. The
Court of Military Review set aside some, but not all, of the
findings of guilt against Combs and set aside his sentence. Id.
at 330. While he was awaiting rehearing, Combs was stripped of
his rank, pay, and privileges, despite his sentence being set
United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000). However,
Fricke contains no such statement nor inference and in fact
recites the general rule that “Article 13, UCMJ prohibits both
the purposeful imposition of punishment on a military accused
prior to court-martial and pretrial confinement conditions which
are more rigorous than the circumstances required to ensure an
accused’s presence.” Id. at 154 (citing United States v.
McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997)). None of the more
recent Article 13, UCMJ, cases decided by this court have
employed or referenced that language from Inong. See United
States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2011); United States
v. Williams, 68 M.J. 252 (C.A.A.F. 2010); United States v.
Adcock, 65 M.J. 18 (C.A.A.F. 2007); United States v. King, 61
M.J. 225 (C.A.A.F. 2005).
8
United States v. Kreutzer, No. 11-0231/AR
aside. Id. at 332. Like Kreutzer, Combs was “‘trapped in the
twilight of the court-martial process . . . adjudicated but
unsentenced,’” after the CCA set aside his contested findings
and his entire sentence. Id. at 331 (citation omitted). This
court found an Article 13, UCMJ, violation when Combs was
stripped of his rank before he was sentenced. Id. at 334. This
punishment, like Kreutzer’s confinement on death row without a
sentence of death, constituted “‘egregious, intentional conduct
by command where there is no evidence of a legitimate, non-
punitive objective for the conduct complained of, the apparent
singling out of an accused for personal humiliation, and
restrictions on liberty so oppressive as to be more consistent
with the status of prisoner.’” Id. at 332 (emphasis omitted)
(citation omitted).
At the time TJAG certified the issues to this court,
Kreutzer had not been sentenced and the sentence had obviously
not been approved by the convening authority. At that point
Kreutzer reverted to being a pre-trial prisoner and, under
Miller, the government was required to conduct an R.C.M. 305
hearing to determine whether he should remain on death row
pending the government’s appeal. The 199 days Kreutzer remained
on death row while not subject to a sentence of death clearly
9
United States v. Kreutzer, No. 11-0231/AR
violated AR Reg. 190-47, para. 12-6.b., which prohibits the
commingling of death sentence and non-death sentence confinees.5
b. Entitlement to Credit
Article 13, UCMJ, prohibits the imposition of punishment
prior to trial and conditions of arrest or pre-trial confinement
that are more rigorous than necessary to ensure the accused’s
presence at trial. In King, 61 M.J. at 227-28, we examined the
scope of Article 13, UCMJ:
Article 13, UCMJ, prohibits two things: (1) the
imposition of punishment prior to trial, and (2)
conditions of arrest or pretrial confinement that are
more rigorous than necessary to ensure the accused’s
presence for trial. The first prohibition of Article
13, UCMJ, involves a purpose or intent to punish,
determined by examining the intent of detention
officials or by examining the purposes served by the
restriction or condition, and whether such purposes
are “reasonably related to a legitimate governmental
objective.” Bell [v. Wolfish], 441 U.S. [520,] 539
[(1979)]; [United States v.] McCarthy, 47 M.J. [162,]
165, 167 [(C.A.A.F. 1997)].
The second prohibition of Article 13 prevents
imposing unduly rigorous circumstances during pretrial
detention. Conditions that are sufficiently egregious
may give rise to a permissive inference that an
accused is being punished, or the conditions may be so
excessive as to constitute punishment. McCarthy, 47
M.J. at 165; United States v. James, 28 M.J. 214, 216
(C.M.A. 1989) (conditions that are “arbitrary or
purposeless” can be considered to raise an inference
of punishment).
5
The period between the date that TJAG certified the case to
this court (June 29, 2004) and the date that Kreutzer was
removed from death row (January 13, 2005) constitutes 199 days.
10
United States v. Kreutzer, No. 11-0231/AR
The second prong of Article 13, UCMJ, prohibits conditions
of confinement that are more rigorous than necessary to ensure
the accused’s presence at trial. Confinement conditions that
are “‘arbitrary or purposeless’” may raise an inference of
punishment under Article 13, UCMJ. King, 61 M.J. at 228
(quoting James, 28 M.J. at 216). In Zarbatany, 70 M.J. 169, we
recognized that the primary mechanism for addressing violations
of Article 13, UCMJ, has been confinement credit. Id. at 174
(citing King, 61 M.J. 225). We noted that “[t]he drafters of
the R.C.M. subsequently ‘explicitly recognized’ this practice
with the adoption of R.C.M. 305(k) in the 1984 Manual for
Courts-Martial, United States (MCM).” Id.
There can be little dispute that Kreutzer’s continued
confinement on death row was more rigorous than necessary to
ensure his presence at his retrial. Under the circumstances of
this case, a transfer from death row would result in Kreutzer
being placed in protective custody or some other placement
segregated from sentenced prisoners.6 It is difficult to argue
6
In our January 5, 2005, order we ordered that Kreutzer be
“remove[d] . . . from death row . . . and place[d] . . . in
appropriate custody in light of the circumstances and status of
his case.” 60 M.J. at 453. Upon his transfer from death row on
January 13, 2004, Kreutzer was initially placed in protective
custody. As Kreutzer was not a sentenced prisoner he could not
be placed in the general prison population. His initial
placement in protective custody was not unreasonable since the
USDB at Leavenworth is not authorized to hold pre-trial
prisoners absent special circumstances and does not have a
11
United States v. Kreutzer, No. 11-0231/AR
that any level of confinement within the USDB would not be
sufficient to ensure his presence at his retrial. It is also
difficult to argue that conditions for death row prisoners are
not more rigorous than those of other prisoner classifications.
USDB Regulation 600-1 states that death sentence prisoners are
placed in hand-irons when outside of their living area and in
full restraints when outside of the Special Housing unit, and
are required to wear an orange jumpsuit instead of the regular
brown jumpsuit which constitutes a prisoner’s duty uniform.
USDB Reg. 600-1, Manual for the Guidance of Prisoners para. 13-
1, 13-3, 13-4 (Aug. 1, 2002). Additionally, an affidavit from a
former noncommissioned officer in charge of the USDB mental
health clinic stated the differences between protective custody
prisoners and death row prisoners were significant. While
protective custody prisoners were allowed to socialize, dine,
and attend group therapy together, death row prisoners remained
in their cells for twenty-three hours a day, were allowed one
hour of recreation with one other prisoner per day, and were
required to dine alone in their cells. Death row prisoners also
were not eligible for group therapy.
dedicated section for pre-trial prisoners. See AR Reg. 190-47
para. 2-2, 3-2.c. Once this court issued its decision on the
certified issue, the Army took the required steps to transfer
Kreutzer to a pre-trial facility.
12
United States v. Kreutzer, No. 11-0231/AR
In Kreutzer’s case the government admits that there is no
evidence on the record as to why he remained confined on death
row following the CCA’s decision. The military judge’s finding
that the government was not required to transfer Kreutzer from
death row once TJAG certified the issues to this court was
incorrect as a matter of law. I would find that Kreutzer is
entitled to relief under the second prong of Article 13, UCMJ,
as his continued confinement on death row was arbitrary and
purposeless and more rigorous than necessary to ensure his
presence at his retrial.7
The government has argued that meaningful relief is
unavailable in this case since Kreutzer received a life
sentence. However, there remains the possibility that his life
sentence will be converted into a term of years at some point in
7
I note that this court also could find a violation under the
first prong of Article 13, UCMJ. That prong can be satisfied by
finding an intent to punish or by “examining the purposes served
by the restriction or condition, and whether such purposes are
‘reasonably related to a legitimate governmental objective.’”
King, 61 M.J. at 227. As noted, the legitimate governmental
purpose in this area is clearly set forth in AR Reg. 190-47
para. 12-6.b., which provides that prisoners sentenced to death
will not be commingled with other than death sentence prisoners.
While “confinement in violation of service regulations does not
create a per se right to sentencing credit,” Adcock, 65 M.J. at
23, violation of a regulation can be considered when assessing
whether there was an Article 13, UCMJ, violation. King, 61 M.J.
at 228. Here there was no evidence on the record as to why
Kreutzer remained confined on death row following the CCA’s
decision, and the government was unable to identify any
legitimate governmental objective or security necessity served
by his continued confinement on death row.
13
United States v. Kreutzer, No. 11-0231/AR
the future. See Article 74(a), UCMJ, 10 U.S.C. § 874(a) (2006);
Dep’t of the Army, Reg. 15-130, Boards, Commissions, and
Committees, Army Clemency and Parole Board para. 3-1 (Oct. 23,
1998). As such, relief in the form of sentencing credit under
Article 13, UCMJ, is appropriate for this type of violation.
Accordingly, under the unique circumstances of this case, I
would award four days of sentencing credit for each of the 199
days Kreutzer was confined on death row after the case was
certified by the government to this court until his transfer
from death row pursuant to this court’s order.8
8
In King, this court awarded three-for-one confinement credit
for the period in which King was kept in solitary segregation
during pre-trial confinement where the government provided no
evidence it explored alternatives to that confinement and no
explanation for why he was so confined. 61 M.J. at 229.
Comparatively, the government’s actions in this case warrant an
award greater than the three-for-one credit awarded in King.
14