United States v. Miller

IN THE CASE OF

UNITED STATES, Appellee

v.

Matthew J. MILLER, Senior Airman
U.S. Air Force, Appellant

No. 02-0449

Crim. App. No. 34031

United States Court of Appeals for the Armed Forces

Argued January 8, 2003

Decided June 11, 2003

ERDMANN, J., delivered the opinion of the Court, in which EFFRON
and BAKER, JJ., joined. GIERKE, J., filed a separate opinion
concurring in result. CRAWFORD, C.J., filed a separate opinion
dissenting in part and concurring in the result.

Counsel
For Appellant: Captain Antony B. Kolenc (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief); Major
Jeffrey A. Vires and Captain Patrick J. Dolan.

For Appellee: Major John D. Douglas (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Lance B. Sigmon, and Captain Shannon
J. Kennedy (on brief); Colonel Anthony P. Datillo and Captain
Adam Oler.

Military Judge: W. Thomas Cumbie
United States v. Miller, No. 02-0449/AF

Judge ERDMANN delivered the opinion of the Court.

Appellant, Senior Airman Matthew J. Miller, United States

Air Force, was tried by general court-martial at Edwards Air

Force Base, California. Pursuant to his pleas, he was convicted

of drunk driving and one specification each of wrongful

distribution and wrongful possession of methamphetamine in

violation of Articles 111 and 112a, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 911, 912a (2000),

respectively. A court of officer members sentenced him to a bad-

conduct discharge and reduction to the grade of Airman First

Class (E-3). On March 14, 2000, the convening authority approved

the sentence as adjudged. On February 4, 2002, the Air Force

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Miller, 56 M.J. 764 (A.F. Ct. Crim. App. 2002).

We granted review of the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY ASSERTING THAT MILITARY
JUDGES ARE NOT REQUIRED TO INSTRUCT COURT-
MARTIAL MEMBERS THAT AN ACCUSED’S PRETRIAL
CONFINEMENT IS A MATTER IN MITIGATION.

We find that the military judge and the Court of Criminal

Appeals erred. However, under the facts of this case, Appellant

was not prejudiced, and therefore we affirm on grounds set forth

below.

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Facts

Prosecution Exhibit (PE) 2, a “Personal Data Sheet,”

reflected that Appellant served three days in civilian

confinement. This entry was captioned “pretrial restraint.”

Based on PE 2 and the fact that the civilian confinement was “for

the same charge that is part of this case,” the parties agreed

that Appellant would be entitled to three days of credit for

pretrial confinement served. The military judge indicated that

he would order that credit “at the conclusion of the proceeding.”

While discussing sentencing instructions the military judge

stated that he would give “the standard sentencing instructions

contained in the Military Judge’s Benchbook[.]” At that point

there was no specific discussion of an instruction on pretrial

confinement as a sentencing factor or an instruction on pretrial

confinement credit. During the presentencing instructions,

although he told the members to consider all the evidence in

extenuation and mitigation, the military judge did not

specifically reference the three days of pretrial restraint at

the hands of civilian authorities, nor did he instruct the

members that Appellant would be credited with three days of

confinement served in the event confinement was adjudged. At the

conclusion of the presentencing instructions, the following

transpired:

[Military Judge]: Counsel for either side,
objections to my instructions or requests for
additional instructions?

[Assistant Trial Counsel]: None from the
Government, Your Honor.

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[Assistant Defense Counsel]: Yes, Your
Honor, the Defense requests that the pretrial
confinement credit instruction be given.

[Military Judge]: I’m going to provide that
independent of whatever happens.

[Assistant Defense Counsel]: Okay.

The military judge later stated during a session pursuant to

Article 39(a), UCMJ, § 10 U.S.C. 839(a) (2000), that Appellant

would “be credited with three days of pretrial confinement

against any term of confinement should confinement be adjudged.”

No similar information was provided to the members by way of an

instruction. Additionally, the members were not instructed that

the three days of pretrial confinement should be considered in

adjudging an appropriate sentence.

Discussion
Had complete instructions been given in this case, the

military judge would have instructed the members on two matters

relating to the pretrial confinement. First, he would have

instructed the members that they should “consider” the pretrial
confinement in determining an appropriate sentence. That

instruction would have been substantially as follows:

In selecting a sentence, you should consider
all matters in extenuation and mitigation as
well as those in aggravation. Thus, all the
evidence you have heard in this case is
relevant on the subject of sentencing.

You should consider evidence as to the nature
of the offenses of which the accused stands
convicted, plus the duration of the accused’s
pretrial confinement.

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See Legal Services, Dep’t of the Army, Pamphlet 27-9, Military

Judges’ Benchbook 2-6-10 and 2-6–11, at 98-99 (2001) [hereinafter

Benchbook].
Second, in light of defense counsel’s request, the military

judge would have instructed that Appellant would receive a credit

for confinement served. That instruction would have been

substantially as follows:

In determining an appropriate sentence in
this case, you should consider that the
accused has spent three days in pretrial
confinement. If you adjudge confinement as
part of your sentence, the days the accused
spent in pretrial confinement will be
credited against any sentence to confinement
you may adjudge. This credit will be given
by the authorities at the correctional
facility where the accused is sent to serve
his confinement, and will be given on a day
for day basis.

See Benchbook 2-6-10, at 94.

The obligation upon the military judge to give either or

both of these instructions involves distinct legal

considerations. Therefore, we proceed to evaluate each

instruction separately.

A. Pretrial confinement as a matter to consider in
adjudging an appropriate sentence.

A military judge is required to “give the members

appropriate instructions on sentence.” Rules for Courts-Martial

1005(a) [hereinafter R.C.M.]. Appropriate instructions must be

tailored to the facts of a case and must include, in part, “[a]

statement that the members should consider all matters in

extenuation, mitigation, and aggravation, whether introduced

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before or after findings, and matters under R.C.M. 1001(b)(1),

(2), (3) and (5).” R.C.M. 1005(e)(5).

Rule for Courts-Martial 1005 provides three separate bases

for instructing on pretrial restraint. First, “[t]rial counsel

shall inform the court-martial of the data on the charge sheet

relating to . . . the duration and nature of any pretrial

restraint.” R.C.M. 1001(b)(1). Rule for Courts-Martial

1005(e)(5) then requires the military judge to instruct the

members to “consider” this information. Second, R.C.M.

1005(e)(5) requires the military judge to instruct the members to

consider “[p]ersonal data” of the accused submitted by the trial

counsel pursuant to R.C.M. 1001(b)(2). As noted above, trial

counsel provided the court-martial with a “Personal Data Sheet”

reflecting Appellant’s pretrial restraint. Third, although

pretrial restraint is not specifically referenced in R.C.M.

1005(e)(5), the discussion to that rule states that tailored

instructions “should bring attention to . . . any pretrial

restraint imposed on the accused.”

In United States v. Davidson, 14 M.J. 81 (C.M.A. 1982), we
addressed the failure of a military judge to instruct that the

accused’s time in pretrial confinement should be considered by

the members in arriving at an appropriate sentence. Davidson was

in pretrial confinement for 143 days. Id. at 83. He called

sentencing witnesses who testified about his “good conduct while

in pretrial confinement,” and defense counsel argued that the

pretrial confinement should be considered in adjudging an

appropriate sentence. Id. at 82-83.

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In Davidson, defense counsel did not request, and the

military judge did not give, any instruction to the members

indicating that pretrial confinement should be considered in

arriving at an appropriate sentence. Id. at 83. We noted that

the President directed in Manual for Courts-Martial, United

States, 1951 paragraph 75b(1), that pretrial confinement was a

matter to bring to the members’ attention, and that United States

v. Wheeler, 17 C.M.A. 274, 277, 34 C.M.R. 72, 75 (1967), required
a delineation of the matters the members should consider on

sentencing. Consequently, we held that “the military judge’s

rote instructions” that omitted any instruction on considering

pretrial confinement “were inadequate as a matter of law.”

Davidson, 14 M.J. at 86.

Despite both the President’s decision and the holding of

this Court in Davidson, the Air Force Court of Criminal Appeals

in this case determined that whether to give a pretrial restraint

instruction was a matter resting within the discretion of the

military judge. Miller, 56 M.J. at 768. Thus, rather than
reviewing the absence of the pretrial confinement instruction as
an error impacting on the completeness of the sentencing

instructions, the Air Force court reviewed this issue under an

abuse of discretion standard.

Contrary to the holding of the Air Force court, Davidson

correctly reflects that where an accused has served pretrial

confinement, the military judge must instruct the members that

the pretrial confinement is a factor to consider in fashioning an

appropriate sentence. The President has determined that such an

instruction is required during court-martial sentencing

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proceedings. See R.C.M. 1005(e). At the time that the Court of

Criminal Appeals reviewed this issue, Davidson stood as the

precedent of this Court. In United States v. Sills, 56 M.J. 239
(C.A.A.F. 2002), this Court addressed another decision of the Air

Force Court of Criminal Appeals that was contrary to United

States v. Turner, 25 M.J. 324 (C.M.A. 1987), a precedent of this

Court. There, we noted:

[T]he Supreme Court’s guidance in Payne v.
Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991), regarding the
doctrine of stare decisis: adherence to
precedent “is the preferred course because it
promotes the evenhanded, predictable, and
consistent development of legal principles,
fosters reliance on judicial decisions, and
contributes to the actual and perceived
integrity of the judicial process.” It is a
principle of decisionmaking, not a rule, and
need not be followed when the precedent at
issue is “unworkable or . . . badly
reasoned.” Id.

Id. at 241. We went on to note that the Air Force court had not

shown Turner to be either unworkable or badly reasoned. Id.

Here, the Air Force Court of Criminal Appeals attempts to

deviate from our precedent without a showing that Davidson is
“unworkable or . . . badly reasoned.” The lower court pays

slight attention to a presidential mandate requiring this

instruction or to this Court’s mandate in Davidson when it

concludes that there is “no reason” not to apply the abuse of

discretion test. Miller, 56 M.J. at 768. On the contrary, the

reason is clear: R.C.M. 1005(e)(5).

Rule for Courts-Martial 1005 carries the President’s

direction to instruct on pretrial confinement as a factor to

consider in adjudging an appropriate sentence. In our view,

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nothing has changed to warrant a conclusion that Davidson is

either inaccurate or based upon an outmoded view of the law. A

military judge must instruct that the members in adjudicating an

appropriate sentence should consider pretrial confinement.

The parties agreed that Appellant served three days in

pretrial confinement pursuant to the charges before the court-

martial. Pretrial confinement was also reflected on the

“Personal Data Sheet” offered during sentencing. This evidence

triggered the military judge’s obligation to instruct. See
R.C.M. 1005(e)(5). Because he did not instruct the members that

they should consider Appellant’s pretrial confinement in

adjudging an appropriate sentence, the military judge erred. The

instructions, as given, “were inadequate as a matter of law.”

Davidson, 14 M.J. at 86.

The Government argues that Appellant waived this instruction

by failing to object to the instructions or request further

instructions before the members retired to deliberate on

sentence. Although Appellant did not object to the instructions

as given, waiver is inapplicable. We have held that R.C.M.
920(f)’s waiver rule is inapplicable to certain mandatory

instructions such as reasonable doubt, the elements of the

offenses, and affirmative defenses. United States v. Davis, 53

M.J. 202, 205 (C.A.A.F. 2000). Similarly, we hold that R.C.M.

1005(f)’s rule of waiver does not serve to forfeit review of this

issue. The military judge bears the primary responsibility for

ensuring that mandatory instructions, including the pretrial

confinement instruction mandated by the President in R.C.M.

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1005(e) and by this Court’s decision in Davidson, are given and

given accurately.

B. Pretrial confinement credit instruction.

The military judge was requested to give the pretrial

confinement credit instruction and he said he would “provide that

independent of whatever happens.” It is not completely clear

whether the military judge was referring to the requested

instruction or the credit itself. For purposes of this appeal

and from the context of his statement, we will assume that the

military judge was referring to the requested pretrial

confinement credit instruction. The military judge did not,

however, give the requested pretrial confinement credit

instruction.

While counsel may request specific instructions, the

military judge has substantial discretion in deciding on the

instructions to give and whether the requested instruction is

appropriate. United States v. Smith, 34 M.J. 200, 203 (C.M.A.
1992). This discretion must be exercised in light of correct
principles of law as applied to the facts and circumstances of

the case. United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F.

1997). Denial of a requested instruction is error if: (1) the

requested instruction is correct; (2) “it is not substantially

covered in the main charge”; and (3) “it is on such a vital point

in the case that the failure to give it deprived [the] defendant

of a defense or seriously impaired its effective presentation.”

United States v. Zamberlan, 45 M.J. 491, 492-93 (C.A.A.F. 1997)

(quoting United States v. Eby, 44 M.J. 425, 428 (C.A.A.F. 1996)).

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See also United States v. Damatta-Olivera, 37 M.J. 474, 478

(C.M.A. 1983).

Turning to whether the military judge erred in not giving

the requested pretrial confinement credit instruction in this

case, Appellant meets the first two requirements of the test.

First, the requested instruction was correct. The military judge

said he would use the “standard” instructions in the Benchbook

and the standard pretrial confinement credit instruction is

consistent with the instruction we approved in United States v.
Balboa, 33 M.J. 304 (C.M.A. 1991). Second, the pretrial

confinement credit instruction was not covered elsewhere in the

sentencing instructions. As noted, the military judge did not

instruct on pretrial confinement as a sentencing factor and he

did not instruct on pretrial confinement credit.

However, the requested pretrial confinement credit

instruction was not “on such a vital point in the case that the

failure to give it deprived [the] defendant of a defense or

seriously impaired its effective presentation.” Zamberlan, 45
M.J. at 493. In fact, the three days in pretrial confinement
were a negligible part of the defense sentencing case. Appellant

did not highlight the nature or duration of his pretrial

confinement as a mitigating factor. There was no evidence

relating to Appellant’s good conduct while incarcerated under

civilian control. Appellant did not even argue that the pretrial

confinement should be considered in adjudging an appropriate

sentence. Under these circumstances, there was no abuse of

discretion in not giving the requested pretrial confinement

instruction.

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C. Harmlessness.

Although the military judge erred by not giving the general

sentencing instruction on pretrial confinement, and even if he

erred by not giving the requested pretrial confinement

instruction as he said he would, we are convinced that Appellant

suffered no prejudice. The record reveals no evidence to suggest

that the nature of the pretrial confinement was unduly harsh or

rigorous. In the scheme of the defense sentencing case, three

days in pretrial confinement was de minimis. The issue of three

days in pretrial confinement was obviously of little consequence

to either party. Finally, given the facts of this case, we note

that the adjudged sentence was favorable to Appellant. Under the

circumstances, Appellant was not prejudiced by the absence of the

standard Benchbook instructions on pretrial confinement and
pretrial confinement credit.

Decision

Although we do not adopt the reasoning in the decision of

the United States Air Force Court of Criminal Appeals, that
decision is affirmed on the grounds set forth in this opinion.

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GIERKE, Judge (concurring in the result):

I agree with the majority that a tailored instruction on

pretrial confinement was mandatory in this case, but I believe

that the mandate flows from this Court’s decision in United

States v. Davidson, 14 M.J. 81 (C.M.A. 1982), not Rules for

Courts-Martial R.C.M. 1005(e)(5) [hereinafter R.C.M.]. The

issue, as I see it, is whether R.C.M. 1005(e)(5), standing

alone, requires a tailored instruction specifically delineating

all the evidence in “extenuation, mitigation, and aggravation

. . . and matters introduced under R.C.M. 1001(b)(1), (2), (3),

and (5).”

On its face, the rule does not require a tailored

instruction delineating all evidence in each of the above

categories. I believe that the plain language of R.C.M.

1005(e)(5) regarding matters introduced under R.C.M. 1001(b)(1)

and (2) would be satisfied if the military judge simply

instructed the members to consider all of the information on the

front page of the charge sheet and the personal data in the

accused’s service record.

If R.C.M. 1005(e)(5) required an instruction specifically

delineating all the information submitted under R.C.M.

1001(b)(1) it would require a specific instruction regarding

each of the matters listed on the first page of the charge

sheet, including grade or rank, pay grade, initial date of
United States v. Miller, No. 02-0449/AF

current service, and pay. Read in connection with R.C.M.

1001(b)(2), it also would require a specific instruction on

virtually every entry in the accused’s service record.

Davidson recognized that pretrial confinement is a

significant sentencing factor that warrants special

consideration. Davidson was not overruled by R.C.M. 1005(e)(5).

To the contrary, they are consistent and complementary. I

believe that R.C.M. 1005(e)(5), when read and applied in light

of Davidson, requires a tailored instruction with respect to

pretrial confinement; but it does not necessarily require

specific mention of every other matter encompassed by R.C.M.

1001(b)(1), (2), (3), and (5). Accordingly, I agree with the

lead opinion’s holding that a specific instruction on pretrial

confinement was required.

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CRAWFORD, Chief Judge (dissenting in part and concurring in

the result):

I would apply waiver because of the lack of defense

objections at various times throughout the trial, conduct a

plain error analysis, and conclude that Appellant did not suffer

any material prejudice.

The majority indicates that the “waiver rule is

inapplicable to certain mandatory instructions,” ___ M.J. (9),

because the military judge bears the primary responsibility for

ensuring that mandatory instructions are given. On the

contrary, the instruction Appellant addresses in this appeal was

not mandatory in this case under the Uniform Code of Military

Justice [hereinafter UCMJ], the Manual for Courts-Martial,

United States (2002 ed.) [hereinafter MCM], or United States v.

Davidson, 14 M.J. 81 (C.M.A. 1981), when read in conjunction

with United States v. Allen, 17 M.J. 126 (C.M.A. 1984). In

short, the defense at trial made a knowing waiver and,

furthermore, suffered no harm.

APPLICABLE LAW

Article 51, UCMJ, 10 U.S.C. § 851 (2000), provides for

mandatory instructions on the elements of the offense, the

presumption of innocence, proof beyond a reasonable doubt, and

the burden of proof. The MCM amplifies the UCMJ, setting forth

a requirement for instructions on the maximum punishment, the
United States v. Miller, No. 02-0449/AF

impact of a punitive discharge, the procedures for deliberation

and voting, a reminder to the members that they are solely

responsible for an appropriate sentence and “should consider all

matters in extenuation, mitigation, and aggravation, whether

introduced before or after findings, and matters introduced

under R.C.M. 1001(b)(1)[.]” Rules for Courts-Martial 1005(e)(5)

[hereinafter R.C.M.].

R.C.M. 1001(b)(1) expressly mandates that “[t]rial counsel

shall inform the court-martial of the data on the charge sheet

relating to . . . the duration and nature of any pretrial

restraint.” The non-binding discussion following R.C.M.

1005(e)(5) states: “[T]ailored instructions on sentencing should

bring attention to the reputation or record of the accused in

the service for good conduct, efficiency, fidelity, courage,

bravery, or other traits of good character, and any pretrial

restraint imposed on the accused.” While the charge sheet did

not show any pretrial restraint, the stipulation of fact and the

personal data sheet both showed three days of civilian

confinement.

As the majority notes, Davidson further informs the Court’s

analysis of the issue; however, I disagree with the majority’s

interpretation of Davidson. It is significant that Davidson was

a 1-1-1 opinion. First, Judge Fletcher indicated that United

States v. Wheeler, 17 C.M.A. 274, 38 C.M.R. 72 (1967),

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“delineate[d] the matters which the members should consider in

their deliberation, . . . hold[ing] the military judge’s rote

instructions in . . . [Davidson’s] case were inadequate as a

matter of law.” 14 M.J. at 86. Wheeler is different from the

present case because in Wheeler, the instruction contained

“[n]ot a word . . . about the evidence in extenuation or

aggravation,” but only guidance on the maximum punishment. 17

C.M.A. at 274, 38 C.M.R. at 74.

In addition, Judge Cook, concurring in part and dissenting

in part, recognized that the MCM provided that the members “may

consider” pretrial confinement when imposing a sentence, and

added that it was not a requirement to consider pretrial

confinement, even under the Equal Protection Clause. Davidson,

14 M.J. at 91.

Finally, Chief Judge Everett, concurring in the result,

agreed that the absence of an instruction was prejudicial since

there is no requirement that the accused “receive credit on his

sentence for pretrial confinement[.]” Id. at 87. Importantly,

this concurrence was converted to the majority stance in Allen,

where the Court held that an accused must be given day-for-day

credit for time spent in lawful pretrial confinement. 17 M.J.

at 128.

The majority reads too much into Davidson. In Davidson,

the Court held that “rote instructions” to consider decorations

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and “all the facts and circumstances of this case as extenuated

and mitigated by other matters” were inadequate. The Court did

not hold what was required. The failure to mention the 143 days

of pretrial confinement in Davidson was held to be error, but

there is no language in Davidson that says or holds it is

mandatory for the instructions to include a comment that

pretrial confinement is to be considered as a matter in

extenuation or mitigation.

DISCUSSION

The defense in the present case failed to capitalize on

several opportunities to object or to request clarifying

instructions, and in so doing, waived any further instruction on

extenuation and mitigation.

First, the members of the court-martial knew that civilian

authorities incarcerated Appellant for three days of pretrial

confinement, as the issue was resolved prior to trial through

stipulation.

[Assistant Defense Counsel]: Before going into
documentary evidence looking at Prosecution
Exhibit 2, the personal data sheet, showing that
Airman Miller spent three days in civilian
confinement and on the charge sheet it doesn't
indicate that.
[Military Judge]: I noticed that. And it is
not the Defense's position that the Accused is
entitled to any credit for those three days?
[Assistant Defense Counsel]: It is, Your Honor.

[Military Judge]: It is?

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[Assistant Defense Counsel]: Yes, your Honor.
[Military Judge]: And the Government's position?
[Trial Counsel]: Your Honor, I did have a
chance to research this and discuss with
Colonel Weeks, our Staff Judge Advocate. The
Government's position is that because his
pretrial confinement was for the same charge
that is part of this case, that it would be
the fact that the Accused was entitled to
pretrial credit time.

The defense contends that the judge forgot to give an

instruction required by the Military Judges’ Benchbook. See

Legal Services, Dep’t of the Army, Pamphlet 27-9, Military

Judges’ Benchbook (2001). On the contrary, the military judge

already had an agreement from both sides that the three days

would be credited against any confinement adjudged.

Moreover, immediately prior to the members' deliberation on

the appropriate sentence, Appellant requested an instruction

that the members specifically consider his pretrial confinement.

[Military Judge]: Counsel for either side,
objections to my instructions or requests for
additional instructions?
[Trial Counsel]: None from the Government,
Your Honor.

[Assistant Defense Counsel]: Yes, Your Honor,
the Defense requests that the pretrial
confinement credit instruction be given.
[Military Judge]: I'm going to provide that
independent of whatever happens.
[Assistant Defense Counsel]: Okay.

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This discussion occurred in front of the members. Appellant

neither objected nor requested further instructions before the

members began their deliberations, as he was no doubt satisfied

that he would get credit under Allen.

After commencing their deliberations, the members raised a

question concerning whether any confinement would be served

locally. Appellant again failed to exploit an opportunity for

objection.

[Military Judge]: Now in answer to your question
number 3, is confinement conducted locally? Does
it make a difference if it's done in conjunction
with a discharge or would a discharge force the
confinement to be done in a different location?

Let me answer the question in parts. A
discharge, if the members determine that a
punitive discharge was appropriate in this case,
would not drive where any confinement were served
if you were to also adjudge confinement.
Now if the court members determine that
confinement is appropriate the Accused will be
transferred to the Air Force Correctional System.
Now what that means is there are a lot of factors
that would factor into whether or not the Accused
would serve his confinement locally or somewhere
else and that would include things such as the
length of the term of confinement, obviously, the
availability of bed space, the availability of
facilities, the availability of correctional
personnel. Again, a whole number of factors which
without knowing -- we can't tell you exactly what
those factors would be, so I can't tell you if you
give him x amount of time, if you determine
confinement is appropriate, that he would serve it
here or x amount of time, he might serve
confinement somewhere else. That's just impossible
to do.

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United States v. Miller, No. 02-0449/AF

Now that partially answers your question. I
realize it doesn't answer the other part, but as
best we can does that answer your question?
[Affirmative response from all members.]
[Military Judge]: Both sides are you satisfied
with that explanation?
[Assistant Defense Counsel]: Yes, Your Honor
[Trial Counsel]: Yes, Your Honor.

Finally, the members resumed deliberating, and the military

judge convened a session under Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2000), addressing confinement.

[Military Judge]: This Article 39(a) Session
is called to order. The parties are present.
The members are absent.
My understanding is that both sides concur
that the Accused should be credited with three
days of pretrial confinement against his term of
confinement should there be confinement.

[Assistant Defense Counsel]: Yes, sir.
[Military Judge]: So the Accused will be credited
with three days of pretrial confinement against
any term of confinement should confinement be
adjudged.
. . . .
[Military Judge]: Any matter that either side can
think [of] that we need to take up prior to
closing for the members deliberations?
[Assistant Defense Counsel]: Not from the Defense,
Your Honor.
[Trial Counsel]: No, Your Honor.
[Military Judge]: This Article 39(a)
Session is adjourned.

Consistent with the practice throughout trial, defense counsel

failed to object or to request clarifying instructions.

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Application of waiver in the absence of plain error

disposes of this case because Appellant suffered no substantial

harm from the omission of the instruction. First, the parties

were never focused on the three days’ credit. The prosecution

argued for a discharge and 15 months of confinement. To counter

this argument, the defense three times asked the panel for four

months of confinement. The three days’ credit was therefore de

minimis, and even counter to the argument defense counsel was

making to the members at the time.

Moreover, the judge instructed the members to give “due

consideration to all matters in mitigation and extenuation[.]”

Later in the instruction, he again told the members to consider

matters in mitigation. Additionally, the judge very carefully

discussed with counsel from both sides more than ten factors

addressed in Wheeler, and gave more than just “rote

instructions.”

In sum, Appellant clearly assumed he would receive the

credit pursuant to Allen. As Chief Judge Everett noted in

Davidson -- Allen’s precursor -- the credit could be given, as

the military judge in this case planned, by reducing the

sentence or directing the convening authority to give credit.

14 M.J. at 87 n.2.

Thus, I disagree that Davidson requires a mandatory

instruction on pretrial confinement. R.C.M. 1005(e) and R.C.M.

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United States v. Miller, No. 02-0449/AF

1001(b)(1) requirements were not triggered. Moreover, there was

no plain error. To establish plain error, Appellant has the

burden of showing that there was (1) error; (2) that it is

plain; (3) that it “affect[s] substantial rights”; and (4)

”seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Johnson v. United States,

520 U.S. 461, 467 (1997). See also United States v. Kho, 54

M.J. 63, 65 (C.A.A.F. 2000)(Crawford, C.J., concurring in the

result). In this case, even assuming Appellant has met his

burden as to (1) and (2), he has not met his burden as to (3)

and (4). The parties in this case realized the futility of

arguing for a mere three days’ credit for pretrial confinement,

in light of counsel’s arguments for a maximum punishment of 15

months and 4 months, respectively. The defense simply knew they

were better off getting a sure three days’ credit after trial.

Accordingly, I dissent from the majority’s rationale, but

concur in the result.

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