United States v. Christian

UNITED STATES, Appellee

v.

David P. CHRISTIAN, Staff Sergeant
U.S. Army, Appellant

No. 04-0797

Crim. App. No. 20011021

United States Court of Appeals for the Armed Forces

Argued October 12, 2005

Decided May 31, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain Julie A. Caruso (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, Major Sean S. Park,
and Captain Michael L. Kanabrocki (on brief); Colonel John T.
Phelps II and Major Allyson G. Lambert.

For Appellee: Captain Larry W. Downend (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Major
William J. Nelson (on brief).

Military Judge: Patrick J. Parrish

This opinion is subject to revision before final publication.
United States v. Christian, No. 04-0797/AR

Chief Judge GIERKE delivered the opinion of the Court.

This Court has granted review of two issues.1 The first

issue for our consideration is whether life without eligibility

for parole (LWOP) was an authorized punishment at the time

Appellant committed the offense of forcible sodomy of a child

under twelve years of age. We hold that LWOP was an authorized

sentence and conclude that Appellant’s guilty plea was

provident.

The second issue is whether Appellant received ineffective

assistance of counsel because his trial defense counsel failed

to advocate for confinement credit for Appellant’s alleged

illegal pretrial punishment and restriction tantamount to

confinement, and advised Appellant to affirmatively waive the

issue. We hold that there were reasonable explanations for

these tactical decisions. As a result Appellant did not receive

ineffective assistance of counsel. We will address each of

these issues seriatim.

1
United States v. Christian, 61 M.J. 146 (C.A.A.F. 2005). We granted review
of the following issue raised by appellate defense counsel:

I. BECAUSE LIFE WITHOUT PAROLE WAS NOT AN AUTHORIZED PUNISHMENT
UNDER THE UNIFORM CODE OF MILITARY JUSTICE FOR FORCIBLE SODOMY OF
A CHILD UNDER TWELVE YEARS OF AGE, WHETHER APPELLANT’S PRETRIAL
AGREEMENT IS A NULLITY AND IT, AND THE FINDINGS AND SENTENCE
WHICH WERE BASED UPON IT, SHOULD BE SET ASIDE AS APPELLANT
ENTERED INTO THE AGREEMENT WITH A MATERIAL MISUNDERSTANDING OF
THE MAXIMUM IMPOSABLE SENTENCE.

And the following issue personally asserted by Appellant:

II. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HIS TRIAL DEFENSE COUNSEL FAILED TO REQUEST CREDIT FOR
APPELLANT’S ILLEGAL PRETRIAL RESTRAINT AND PRETRIAL CONFINEMENT
AND THEN ADVISED APPELLANT TO AFFIRMATIVELY WAIVE THESE ISSUES.

2
United States v. Christian, No. 04-0797/AR

Factual Background

Congress passed a bill authorizing the court-martial

punishment of confinement for LWOP on November 6, 1997.2 The

portion of this bill relevant to this case permitted a court-

martial to adjudge a sentence of LWOP for “any offense for which

a sentence of confinement for life may be adjudged.”3 The

President signed that bill into law on November 18, 1997.4

At the time this law became effective, offenses for which a

sentence of confinement for life may be adjudged and to which

the new law would apply could arguably be identified in two

ways. First, Congress could have explicitly provided for

imprisonment for life for a particular offense.5 Second, where

the text of a punitive article did not provide for “imprisonment

for life,” or otherwise restrict the available sentence, the

President in the Manual for Courts-Martial (MCM) may also have

prescribed a life sentence for an offense.6

It is this second circumstance that is implicated in the

present case. Appellant committed the offense of oral sodomy on

a seven-year-old sometime in May 1998. At that time, the

2
National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85,
§ 581, 111 Stat. 1629, 1759 (1997) (codified at Article 56a, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 856a (2000)).
3
Article 56a, UCMJ.
4
Signing Statement, 33 Weekly Comp. Pres. Doc. 1861 (Nov. 18, 1997)
[hereinafter Signing Statement, Nov. 18, 1997].
5
See Article 118, UCMJ, 10 U.S.C. § 918 (2000) (providing for a sentence for
certain identified murder offenses as “death or imprisonment for life as a
court-martial may direct”).
6
See MCM pt. IV, para. 51.e.(3) (1995 ed.) (providing for a sentence for
sodomy with a child under the age of twelve years at the time of the offense
of “confinement for life”).

3
United States v. Christian, No. 04-0797/AR

punitive article punishing Appellant’s aggravated sodomy offense

did not explicitly provide for a punishment of imprisonment for

life but instead authorized a punishment “as a court-martial may

direct.”7 The MCM provided for a maximum punishment of

“confinement for life.”8 There had been no amendment to the MCM

to suggest that LWOP was a permissible punishment for this

offense.

On November 13, 2001, Appellant pled guilty to the

commission of forcible sodomy of a child under twelve years of

age and several other offenses in connection with the sexual

molestation of his three minor stepdaughters and a thirteen-

year-old friend of one of his stepdaughters. The military judge

advised Appellant that the maximum punishment for his offenses

included LWOP, and the trial defense counsel agreed without

objection. Appellant entered into a pretrial agreement based on

this assumption. The military judge accepted Appellant’s guilty

plea, convicted him of the charged offenses, and eventually

sentenced Appellant to a dishonorable discharge, confinement for

sixteen years, forfeiture of all pay and allowances, and

reduction to the grade of Private (E-1).

On April 11, 2002, after Appellant’s court-martial, the

President amended the MCM to identify LWOP as a permissible

confinement punishment for an Article 125, UCMJ, offense, as

7
Article 125, UCMJ, 10 U.S.C. § 925 (2000).
8
MCM, pt. IV, para. 51.e.(3) (1995 ed.).

4
United States v. Christian, No. 04-0797/AR

well as other offenses.9 Relying on this change to the MCM after

his court-martial was complete, Appellant asserts on appeal that

LWOP was not an authorized punishment for his aggravated sodomy

offense committed in 1998. In a per curiam unpublished opinion,

the Army Court held the findings of guilty and the sentence as

approved by the convening authority correct in law and fact.10

We then granted Appellant’s petition to review his case.

Congressional Authorization of LWOP as Punishment

The primary issue in this case is whether LWOP was an

authorized court-martial punishment for the crime of forcible

sodomy of a child under twelve years of age during the period

between enactment of the LWOP statute and the eventual changes

in the MCM. We conclude that the statute creating LWOP

authorized this punishment after the date of its enactment,

November 18, 1997. As Appellant committed the offense of

forcible sodomy of a child under twelve years of age in May

1998, LWOP was an authorized punishment.

The Framers of the Constitution entrusted in Congress the

power “To make Rules for the Government and Regulation of the

land and naval Forces[.]” U.S. Const. art. I, § 8, cl. 14.

Congress exercised this power by establishing the UCMJ.

Importantly for our present purposes, in Articles 18, 36, and

56, UCMJ, Congress assigned specific responsibilities to the

9
Exec. Order No. 13,262, 67 Fed. Reg. 18,773, 18,779 (Apr. 11, 2002).
10
United States v. Christian, No. ARMY 20011021 (A. Ct. Crim. App. July 27,
2004).

5
United States v. Christian, No. 04-0797/AR

President.11 These include the President’s authority to

establish rules of procedure for courts-martial and to prescribe

limits on punishments authorized by the Congress.12

The Supreme Court, most recently in Loving v. United

States, addressed the relationship between congressional Article

I powers and the President’s codal responsibilities.13 The Court

reaffirmed both the primacy of the Congress “To make Rules for

the Government and Regulation of the land and naval Forces”14 and

the flexibility of Congress to assign that authority to the

President as conditions and circumstances may warrant.15 Simply

stated, the legislative power in Article I, Clause 14, is not

exclusive of the power of the President also to act pursuant to

congressional assignment.

The Supreme Court supported these conclusions with

historical analysis stating, “[H]istory does not require us to

read Clause 14 as granting to Congress an exclusive, non-

delegable power to determine military punishments. . . . The

11
Loving v. United States, 517 U.S. 748, 769-70 (1996); Article 18, UCMJ, 10
U.S.C. § 818 (2000); Article 36, UCMJ, 10 U.S.C. § 836 (2000).
12
See Articles 36, 56, UCMJ.
13
Loving, 517 at 767.
14
U.S. Const. art. I, § 8, cl. 14.
15
Loving, 517 at 766-67 (“The lesson from the English constitutional
experience was that Parliament must have the primary power to regulate the
Armed Forces and to determine the punishments that could be imposed upon
soldiers by courts-martial. That was not inconsistent, however, with the
further power to divide authority between it and the Crown as conditions
might warrant. . . . Under Clause 14, Congress, like Parliament, exercises a
power of precedence over, not exclusion of, Executive authority.”).

6
United States v. Christian, No. 04-0797/AR

Framers’ choice in Clause 14 was to give Congress the same

flexibility to exercise or share power as times might demand.”16

Consistent with these principles, we view the President’s

exercise of his statutory responsibility under the UCMJ in the

context of the constitutionally recognized primacy of the

Congress to regulate the military justice system.17

Exercising its Article I power, Congress made the offense

of sodomy punishable “as a court-martial may direct.”18 Congress

also assigned to the President Article 56, UCMJ, power to

prescribe limits on punishments authorized by Congress. Article

56, UCMJ, specifies that “[t]he punishment which a court-martial

may direct for an offense may not exceed such limits as the

President may prescribe for that offense.”

The President exercised this responsibility by executive

orders published in the MCM. At the time Appellant committed

the offense of aggravated forcible sodomy, the President had

established that the maximum punishment for the offense of

forcible sodomy of a minor under the age of twelve was

“confinement for life.”19

As stated above, Congress passed the National Defense

Authorization Act for Fiscal Year 199820 on November 6, 1997, and

16
Id. at 760-61.
17
Id. at 767.
18
Article 125, UCMJ.
19
MCM pt. IV, para. 51.e.(3) (1995 ed.).
20
Pub. L. No. 105-85, § 581, 111 Stat. 1759.

7
United States v. Christian, No. 04-0797/AR

it was signed into law by the President on November 18, 1997.21

The relevant portions of this law are now codified in Article

56a, UCMJ. It states that a court-martial may adjudge a

sentence of LWOP for “any offense for which a sentence of

confinement for life may be adjudged.”22

It is a well-established principle of statutory

construction that, absent a clear direction of Congress to the

contrary, a law takes effect on the date of its enactment.23

Applying this principle, the new LWOP statute became effective

on November 18, 1997, six months prior to Appellant’s offense,

which occurred in May 1998. The statute also provided that

Article 56a, UCMJ, will “be applicable only with respect to an

offense committed after the date of the enactment of this Act.”24

As Appellant committed this offense six months after the

enactment of this act, the LWOP statute applied to his crime.

This Court typically seeks to harmonize independent

provisions of a statute. Articles 56 and 56a, UCMJ, are

independent provisions. Through the passage of Article 56a,

UCMJ, Congress did not disturb the President’s existing Article

56, UCMJ, power to set maximum sentences and determine which

offenses are eligible for a life sentence. Rather, in Article
21
Signing Statement, Nov. 18, 1997.
22
Article 56a, UCMJ; see also United States v. Ronghi, 60 M.J. 83, 85-86
(C.A.A.F. 2004).
23
See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991); Robertson v.
Bradbury, 132 U.S. 491, 493 (1889); Arnold v. United States, 13 U.S. (9
Cranch) 104, 119-20 (1815); see also 2 Norman J. Singer, Sutherland Statutory
Construction § 33:6 (6th ed. 2001).
24
Pub. L. No. 105-85, § 581(b), 111 Stat. 1760.

8
United States v. Christian, No. 04-0797/AR

56a, UCMJ, Congress spoke directly to the court-martial process

by stating that when the President designates life as the

maximum punishment, the court-martial has the authority to

adjudge LWOP.25 In this manner, it is clear that there is no

conflict between Articles 56 and 56a, UCMJ.

The present case is distinguishable from this Court’s

holdings in both United States v. Ronghi26 and United States v.

Stebbins.27 In both Ronghi and Stebbins, death was an authorized

punishment for the crimes committed and LWOP was a lesser

punishment than the maximum (death).28 Therefore, we concluded

that the MCM’s maximum sentence provision did not conflict with

the congressionally authorized sentence of LWOP.29 In the

present case we have explained that the independent provisions

of this statute are in harmony.

We now hold that LWOP is an authorized punishment for

Appellant’s offense of forcible sodomy of a child under twelve

years of age, which occurred after November 18, 1997. In light

of this holding, we conclude that the pretrial agreement is both

proper and lawful and Appellant’s guilty plea was provident. In

our view, Appellant was not misled as to the maximum permissible

punishment of LWOP. The military judge correctly instructed

Appellant as well as trial defense counsel that LWOP was an

25
Article 56a(a), UCMJ.
26
60 M.J. at 86.
27
61 M.J. 366, 369-70 (C.A.A.F. 2005).
28
Ronghi, 60 M.J. at 85; Stebbins, 61 M.J. at 369
29
Ronghi, 60 M.J. at 85; Stebbins, 61 M.J. at 369.

9
United States v. Christian, No. 04-0797/AR

available punishment for his offense. Rejecting Appellant’s

challenge to the providency of his guilty plea, we turn to Issue

II.

Evaluation of the Claim of Ineffective Assistance of Counsel for
Failure to Seek Credit for Pretrial Confinement

Appellant also asserts that he received ineffective

assistance of counsel because his trial defense counsel failed

to advocate for confinement credit for Appellant’s alleged

illegal pretrial punishment and restriction tantamount to

confinement and advised Appellant to affirmatively waive the

issue.

The Supreme Court has established a two-pronged test to

determine whether there has been ineffective assistance of

counsel within the meaning of the Sixth Amendment:

First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial.30

This Court developed a three-pronged test in United States v.

Polk, 32 M.J. 150 (C.M.A. 1991), to determine whether an

appellant has overcome the presumption of competence:

(1) Are the allegations made by appellant true; and, if
they are, is there a reasonable explanation for counsel’s
actions in the defense of the case? (2) If they are true,
did the level of advocacy “fall[] measurably below the

30
Strickland v. Washington, 466 U.S. 668, 687 (1984).

10
United States v. Christian, No. 04-0797/AR

performance . . . [ordinarily expected] of fallible
lawyers”? (3) If ineffective assistance of counsel is found
to exist, “is . . . there . . . a reasonable probability
that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt?”31

In the present case, we do not have to look beyond the

first prong of the Polk analysis to realize that Appellant fails

to establish ineffective assistance of counsel. Appellant

alleges that his pretrial restraint was tantamount to

confinement, and by not arguing for confinement credit, his

trial defense counsel was ineffective. We hold that the

Appellant has failed to show that his trial defense counsel’s

actions were not reasonable. As a result, Appellant has not

demonstrated ineffective assistance of counsel.

According to Appellant, he was hospitalized at the 121

General Hospital in Korea on March 26, 2001, after writing a

suicide letter to his wife the previous day. When Appellant

returned to his unit at Fort Bragg, North Carolina, his

commander placed him on restriction and ordered him to move to

on-post quarters. Appellant told this information to his trial

defense counsel prior to trial. At Appellant’s duty stations

both in Korea and at Fort Bragg, off-post privileges were

revoked and Appellant was required turn in his identification

card unless he needed access to facilities where the card would

be needed. Appellant was also subjected to various reporting

31
Polk, 32 M.J. at 153 (citations omitted).

11
United States v. Christian, No. 04-0797/AR

requirements, which were reviewed repeatedly and, upon each

review, the restrictions imposed were reduced.

Trial defense counsel could have reasonably concluded that

the restrictions imposed on Appellant during his time in Korea

were necessary in light of Appellant’s suicide threat and

therefore not restrictions tantamount to confinement. Appellant

does not contest that he was hospitalized at the 121 General

Hospital in Korea on March 26, 2001, after writing a suicide

letter to his wife the previous day.

Upon arrival at Fort Bragg, Appellant’s command imposed a

series of necessary administrative measures to ensure

Appellant’s future safety as a result of his expressed suicidal

intentions. Appellant’s commander revisited these safeguards on

numerous occasions and, upon each review, the commander reduced

the restrictions imposed.

We note that upon departing Korea, Appellant spent thirty-

six days on leave in Colorado before reporting to his duty in

Fort Bragg, North Carolina on July 23, 2001. Appellant’s new

commander arrested him and preferred charges against him that

same morning. According to Appellant, his restrictions included

being restricted to post, being required to sign in with the

staff duty noncommissioned officer, and having to remain in his

barracks room during evening hours. Due to the serious nature

of the charges (including the forcible sodomy of a child under

12
United States v. Christian, No. 04-0797/AR

twelve years of age) and his emotional history in Korea, it

would be reasonable for defense counsel to conclude that there

was a legitimate purpose for the revocation of off-post

privileges. This Court has been clear that revocation of off-

post privileges is not restriction tantamount to confinement.32

Here, it was reasonable to place initial restrictions on

Appellant upon his return to the military post. As a result,

trial defense counsel could reasonably conclude that the initial

restrictions imposed on Appellant upon his return to the

military post were not tantamount to confinement.

Thus, it would also be reasonable for a trial defense

counsel to conclude that a claim of restriction tantamount to

confinement may be held meritless at trial. Consequently, for

tactical reasons, a defense counsel may want to avoid asserting

such a claim. Moreover, we note that trial defense counsel

discussed Appellant’s restrictions with the military judge.

Here, defense counsel appears to have made a reasonable tactical

decision to offer the circumstances of Appellant’s restriction

as a factor in mitigation of the sentence instead of requesting

confinement credit.33

32
United States v. Powell, 2 M.J. 6, 7 (C.M.A. 1976); see also United States
v. Guerrero, 28 M.J. 223, 225 (C.M.A. 1989); United States v. Rendon, 58 M.J.
221, 224 (C.A.A.F. 2003).
33
United States v. Rock, 52 M.J. 154, 157 (C.A.A.F. 1999) (“Servicemembers
are not entitled to sentence credit against confinement for any and all time
during the pendency of court-martial charges, even if restraints on liberty
which are not tantamount to confinement are imposed. Such periods of
restraint, however, can often be useful to the defense in mitigation.”).

13
United States v. Christian, No. 04-0797/AR

In light of this conclusion, it follows that it was also a

reasonable tactical decision for trial defense counsel to advise

Appellant to affirmatively waive these issues. As a result, the

first prong of the Polk analysis has not been satisfied and

Appellant did not receive ineffective assistance of counsel.

DECISION

The decision of the United States Army Court of Criminal

Appeals is affirmed.

14