U.S. v.Gay
75 M.J. 264
| C.A.A.F. | 2016Background
- Staff Sgt. Kevin Gay was convicted at general court-martial of larceny, wrongful appropriation, wire fraud, and identity theft; sentence included a bad-conduct discharge, six months confinement, forfeiture of pay, and reduction to E-3.
- After conviction, Gay was confined at Monmouth County Correctional Institution (MCCI), placed near a foreign national for nine days, then moved to solitary for roughly six days; Gay alleged this violated Article 12 and amounted to cruel and unusual punishment under Article 55/Eighth Amendment.
- Gay submitted affidavits and his unit superintendent submitted an affidavit alleging Air Force personnel directed MCCI to place Gay in protective/corrective custody; unit complaints led to his prompt transfer out of solitary and into a pod without foreign nationals.
- The convening authority awarded nine days’ credit for an Article 12 violation but denied credit for alleged Article 55/Eighth Amendment violations.
- The Air Force CCA held the confinement conditions did not violate the Eighth Amendment or Article 55 but nonetheless granted sentence-appropriateness relief under Article 66(c), reducing confinement to three months based on (among other things) a legal deficiency in how confinement was imposed.
- The Judge Advocate General certified whether the CCA abused its discretion by granting Article 66(c) relief absent an Eighth Amendment or Article 55 violation; the CAAF affirmed the CCA, holding the CCA acted within its Article 66(c) discretionary authority where a legal deficiency in post-trial processing existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CCA may grant Article 66(c) sentence-appropriateness relief for post-trial confinement conditions absent an Eighth Amendment or Article 55 violation | Gay: CCA may use Article 66(c) discretion to tailor relief for post-trial conditions even if they fall short of constitutional or Article 55 violations | Gov't: CCA abused discretion—Fagan/Tardif require a constitutional or statutory violation before Article 66(c) relief for post-trial confinement | CAAF: CCA did not abuse discretion; Article 66(c) permits relief where a legal deficiency in post-trial processing exists even if conditions do not reach Eighth Amendment/Article 55 violation |
| Whether Fagan/Tardif prohibit CCA from granting relief without first finding an Eighth Amendment/Article 55 violation | Gay: Fagan does not impose that prerequisite; CCAs retain discretion to craft remedies under Article 66(c) | Gov't: Fagan means CCAs cannot grant relief except after acknowledging legal error rising to constitutional/statutory violation | CAAF: Fagan was misread by gov’t; it does not require that the legal deficiency be an Eighth Amendment or Article 55 violation to justify Article 66(c) relief |
| Whether a DuBay/DuBay-style factfinding was required under Ginn before granting relief | Gay: CCA’s Ginn analysis was sufficient; no remand needed | Gov't: CCA should have remanded when factual disputes existed | CAAF: Parties agree CCA did not err in Ginn analysis; no remand required |
| Scope of Article 66(c) discretionary authority over sentence appropriateness | Gay: Article 66(c) permits consideration of entire record including post-trial conditions and tailoring of relief | Gov't: Article 66(c) should be cabined by prior precedents requiring legal error of constitutional magnitude | CAAF: Article 66(c) is discretionary and may be exercised when a legal deficiency in post-trial processing supports that relief |
Key Cases Cited
- United States v. Fagan, 59 M.J. 238 (C.A.A.F. 2004) (discusses when CCA must order DuBay factfinding versus exercising Article 66(c) relief)
- United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (interprets Article 66(c) standards for correctness in law and fact)
- United States v. Wheelus, 49 M.J. 283 (C.A.A.F. 1998) (recognizes CCAs’ authority to moot claims of prejudice via Article 66(c))
- United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) (sets criteria for when DuBay factfinding is required to resolve affidavit conflicts)
- United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (addresses limits on using protective placement to avoid Article 12 issues)