United States v. Fricke
2000 CAAF LEXIS 685
C.A.A.F.
2000
Check Treatment
Docket

*1 STATES, Appellee, UNITED FRICKE, Lieutenant

Michael W. Navy,

Commander, U.S.

Appellant.

No. 98-0783.

Crim.App. 96-1293. No. Appeals for

U.S. Court . the Armed Forces

Argued 1999. Dec. July

Decided

ING BEEN SUBJECTED TO UNLAW- FUL PRETRIAL PUNISHMENT IN VIOLATION OF ARTICLES 13 AND UCMJ, §§ 10 U.S.C. 813 and 855. II. THE WHETHER NAVY-MARINE CORPS COURT OF AP- CRIMINAL SULLIVAN, J., opinion delivered the ERRED PEALS IN FINDING THAT Court, EFFRON, J., in which and EV- PLEA APPELLANT’S GUILTY IS NOT ERETT, S.J., joined. CRAWFORD, C.J., VOID IN VIOLATION OF ARTICLE GIERKE, J., opinion each filed an con- UCMJ, § IN AP- U.S.C. THAT curring dissenting part. PLEADED PELLANT GUILTY ATO (ar- Appellant: For Ruttenberg Alison CAPITAL OFFENSE AND THE GEN- Anderson, (on gued); Major Dale USMC ERAL COURT-MARTIAL THE OF brief). KIND IN SPECIFIED 10 USC SEC- Appellee: For Lieutenant Janice K. 816(1)(B) TION WAS WITHOUT JURIS- JAGO, O’Grady, (argued); USNR Colonel DICTION TO CONVICT APPELLANT Sandkuhler, USMC, Kevin M. and Com- BASED UPON THIS IMPROVIDENT brief). (on Irvin, Eugene mander E. USN PLEA. against appellant We hold oh Issue II. On Judge opinion SULLIVAN delivered the I, Issue we remand case for a of the Court. DuBay1 hearing post-trial on his claim of Appellant Legal was tried at the Naval punishment prior unlawful to trial. Article Office, Norfolk, Virginia, by Service gener- 13, UCMJ, 813; § see United States al composed military judge court-martial aof (1997); 47 MJ 236 cf. sitting pleas, alone. Pursuant to his he was Combs, (1997); 47 MJ 330 see generally murder, premeditated found in vio- Johnson, 1554, 1564-65 McMillian v. 88 F.3d lation of Article (11th Cir.1996). Uniform Code of Mili- tary Justice, August USC 918. On (A) 1994, appellant dismissal, was sentenced to a life, forfeitures, confinement for total a fine Facts $100,000, years’ and an additional 2 con- 38-year was a old Lieutenant paid. finement if the fine was not On June years Commander with 17 of naval service at 11, 1996, convening authority approved offense, assigned the time of the he and was adjudged, except, the sentence as pursuant Oceana, Beach, Virginia Virginia. to NAS pretrial agreement, suspended con- May 13,1988, evening About sunset on the exceeding years finement and all forfei- wife, Roxanne, appellant’s 31-year-old years. tures and fines for a of 10 shot and killed as she entered her vehicle Appeals Court of Criminal affirmed the find- shopping supermarket after at a Farm Fresh ings 10,1998. and sentence on March Virginia approached Beach. An assailant car, purse, her stole her and shot her twice handgun. with a 4, 1999, The crime remained un- granted On June we review of the solved until ap- October at which time following issues: pellant was arrested. I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL AP- Brunson, Lamar who had served in the PEALS ERRED IN FINDING THAT Navy appellant, with informed the Norfolk APPELLANT IS NOT ENTITLED TO police appellant had hired a hit man to ADDITIONAL $5,000 ADMINISTRATIVE paid kill his wife. The hit man was TIME CREDIT FOR HAVING BEEN shortly prom- after the murder and had been $25,000. ILLEGALLY CONFINED PRIOR TO Appellant paid ised a total of him TRIAL, $8,000 AND ADDITIONAL Shortly ADMINIS- an additional sometime later. death, TRATIVE TIME CREDIT FOR HAV- before his wife’s had secured DuBay, 1. United States 17 USCMA CMR 1967 WL 4276 counsel, And, advice what defense his MJ: $100,000 policy on term life insurance as to the maxi- you given the accused existing life already had an life. She wife’s of which for the offense punishment in the amount of policy payable mum insurance beneficiary guilty? $25,000. Appellant plead was the he’s offered policies. both Sir, Lieutenant Com- I’ve advised IMC: *3 punish- maximum Fricke that the mander kept pretrial confinement Appellant was is: during this in this case days. alleges that ment authorized for 326 Confine- pay all by life; forfeiture of in a 6-feet 8-feet ment period, he was housed fine; allowances; lineal num- Segregation Unit. loss of all Disciplinary the call within the appellant seniority; and dismissal from According to an affidavit which bers and submissions, he post-trial his submitted with service. naval day, in his kept was fed there 23 hours Fricke, you have been Commander MJ: cell, talk to other not allowed to and was punish- correctly of the maximum advised required to sit He claims he was prisoners. alone, you your plea guilty ment. On to from 4:30 a.m. at a small school-like desk receive: could day. not allowed to p.m. each He was 10:00 dismissal; A sleep. He was his bunk or to sit or lie on life; Confinement only the Bible or some other allowed to read pay all and allow- forfeiture of Total literature. Christian ances; Appellant initially plea entered a Afíne; and charge premeditated but guilty to a murder numbers, seniority the conclu- lineal changed plea his after Loss of all time, At that Navy. of the Government’s case. position sion the pretrial agreement from the secured you that? Do understand MJ: agree- convening authority. As Yes, sir. ACCUSED: ment, authority promised to convening added). (R. 1395) (emphasis ap- if previous capital referral withdraw trial, successfully completed providence appellant submitted two pellant After his inquiry charged to the offense. The follow- below and appellate court affidavits to ing exchange military judge and between the credit based on a claim for sentence made place appellant’s trial counsel took before punishments. One was his illegal pretrial plea affidavit, Major was entered: was that of and the other Larsen, time, counsel, was housed in the same you Bart who At this trial

MJ: during appellant’s con- regarding facility appellant an announcement to make finement, prisoner. capital a sentenced pretrial agreement and the refer- but as Major alleged, Larsen cor- ral? by roborated, conditions endured various Yes, Sir, authorized TC: sir. I’ve been during confinement appellant convening authority that this General they were told these and that non- Cowrb-Martial’s now been referred part of in an effort on the imposed were is condi- capital. That referral decision produce a confession Brig authorities plea upon your acceptance of a tioned appellant. from Charge and guilty from the accused to the agree- Specification, as well as Government, response appel- ment in this case. illegal pretrial confinement lant’s claims of Fricke, Very be- well. Commander MJ: submitted pretrial punishment, and unlawful has withdrawn the cause the Government of the Director of Corrections an affidavit time, you gives capital at this referral Brig to the court below. Norfolk Naval elec- option regarding forum a different affidavits, the solely on these three Based tion____ claims, rejected rely- court below 1392). (R. at ing decision United States Court’s Ginn, It asserted guilty plea, appellant entered his After alleged [appellant’s of the ‘facts following colloquy “[m]ost occurred: ... affidavits] would not result in relief even Bart Larsen. He described the conditions of any dispute appel- factual were resolved in similar affidavit said, lant’s favor[.]’” It also “Under these and he further stated: [two circumstances affidavits from adjacent We were housed in cells even years apart] appellate filings ‘the and the though I adjudged prisoner was an “compellingly record as a whole demon- LCDR Fricke was confinement. improbability^ strate” the of the remainder of counselor, We had the same Senior Chief appellant’s affidavits.” Jacobs, Brig, the senior counselor at the Fricke, 550, quoting atMJ together. who often talked to us Senior dissented, Judge 47 MJ at 248. Leo second, reasoning three-year Chief Jacobs was on his appel- that “there is no basis filings late or the sup- record as a whole to duty tour of at the Norfolk Naval *4 port majority’s finding improba- the that the On several occasions I heard state him bility of factual assertions has many military that times the would hold ‘compellingly been demonstrated’ on this personnel in arduous confinement pretrial punishment.” claim of Id. at 551. long period time to “break them” for of affidavit, Appellant’s above, as noted re- confessing. into He also that said LCDR why subjected counted his belief as to he was brig being Fricke “held the record in for to these “horrific and onerous conditions” of longer any previous the block prison- than pretrial confinement. He in stated his affi- er.” davit of June 1995: added.) (Emphasis The Government’s intent was clear and Jacobs, up by summed Senior the Government, response, in Chief submitted assigned senior counselor to the Naval an affidavit the from administrator of

Brig and the assigned counselor to me Brig the Naval where was held in during my there. Senior pretrial confinement. It stated: Jacobs told me on a number occa- Chief of My name is I Ronnie C. Askew. am sions that keep the Government would me Brig, Director of Corrections at Naval they “locked down until broke” me. His Norfolk, Virginia. assigned I have been comments to me are documented in the facility April since 1980 and was serv- Major Larsen, enclosed statement of Bart ing position during in this an Air con- Force Officer who was confined a portion Brig per- time while I of was finement LCDR Fricke [sic] there. The completing Senior Chief was knowledge sonal of the conditions of his second, three-year duty his tour of at the following confinement. The statements Brig Naval completing and was his Bache- upon memory. are based current Degree Criminology. lors He was no 2. All individuals confined are first as- rookie to the manner in which the Govern- signed person measuring ap- to a one cell operates spoke ment and from extensive wide, proximately deep, 6 feet feet and experience training. and high 10 feet for a of observation and

* * * custody security They classification. stay are not in this cell at all mentioned, previously As the Govern- times are removed to visit their coun- ment’s intent of the manner which I was selor, phone, use the purchase health and aptly confined was stated Senior Chief Jacobs, items, go shop the senior counselor at the to the barber comfort many stated on it was occasions com- require- medical needed. Due to the keep pre-trial mon separate ment to house officers to the ex- inmate locked down in order to break possible prisoners, tent from enlisted get them and them to confess. assigned LCDR Fricke was to either cell added.) (Emphasis during peri- block A or B his confinement During od. that time frame LCDR also submitted an affidavit dated April prisoner, Major facility, 1995 from another Fricke was confined at this officers premedi- plea to guilty his we set aside in order in the cell block area housed

were pris- enlisted separation noncapital from sentence to maintain murder and his tated facility are de- at this All cells oners. First, plea that his he asserts two reasons. same, cell or cell block signed the no capital in a case referred guilty differ- specific status. The designated a UCMJ, 45(b), 10 USC under “void” special quarters and disci- ence between 845(b).2 Second, mili- that the he asserts items segregation is based what plinary accept jurisdiction to no tary judge had in his cell. prisoner is allowed to have re- in a case guilty to this offense plea of segregation results Disciplinary also UCMJ, capital. Article ferred as Fricke was privileges. LCDR loss of all disagree. § 818.3 We segregation disciplinary placed never privileges possible. all and was argu- afforded premise of The factual prisoners participate In order for officer capital referred that his case was ment is programs with enlisted members plea premeditated the time request required to submit a officer is accepted by the preferred and murder was right writing that he waives his and state brief, recog- he military judge. In his final my To knowl- separation from enlisted. authority had convening nizes such a edge, Fricke never made LCDR capital, if his case as agreed to withdraw the sepa- right request nor did waive *5 military accepted by the guilty plea of was daily copies I attached of the ration. Moreover, the mil- recognizes that judge. for officers as contained routine accept guilty plea. itary indeed his judge did (revised 5000.1B NAVBRIGNORVAINST Nevertheless, he asserts: during in effect LCDR Fricke’s Oct 96 but Fricke did period), LCDR confinement However, to nothing in the record there is Bible, TV or read other than the not watch authority actually convening that the show by personal choice. it have been must and capital as a case withdrew the referral restraining regards 3. In to the use noncapital In the it as a case. re-referred devices, escorted LCDR Fricke was not by any paperwork in the record of absence by Brig Brig compound staff. outside the convening authority referring the case been a The use of restraints would have capital noncapital, the case remained Depart- Police decision of Naval Base in- throughout proceedings, case all provided ment who escorts. sentencing guilty plea cluding the injury prevent to the order to Therefore, during the at all times phases. others, petty prisoner or chief officer announced, until sentence was trial prisoners to wear officer are not allowed penalty, and in appellant faced the death any collar time inside ribbons or devices fact, panel remained on qualified a death until the standby try him for his life to added.) (Emphasis hearing. pre-sentencing of the start Final Brief at 34-35. (B) by appellant’s statu- persuaded not We are Validity Guilty Plea First, reasons. tory arguments for several II) (Granted Issue authority controlling he has cited no by convening “paperwork that assertion first issue will address this we referring noncapital” authority the case as Appellant asks Assigned Issue II. case However, Justice, general Military court-martial ... 2. Article Uniform Code of 816(1)(B) specified states: of this title in section kind (b) may (Article 16(1)(B)) plea guilty by jurisdiction not be A the accused not have shall any specification alleging charge or received an offense for which the death adjudged. any try any person for which the offense penalty may be may adjudged penalty unless the case death be previously to trial as non- has been referred 18, UCMJ, capital case. states: 3. Article required. King, improperly subjected See United States v. that authorities (CMA 1989); 601(e)(1), excessively him to arduous and inhumane MJ RCM confinement, Discussion, placed Courts-Martial, Manual for Unit- confinees, on other (1994 ed.) order to coerce (nonbinding ed States comments of confessing. requests or him break into generally suggesting drafters of Manual days days “credit of five-for-one for the 326 “[a]ny special instructions must be stated in spent that he confinement.” Final 103(2) indorsement”); the referral RCM cf. Brief at 13. (no express requirement noncapital re- written). ferral be 13, UCMJ, stated instruction that is provides: Second, argument ignores the fact that prohibited § 813. Art. 13. Punishment objection judge, without before trial case, parties in acknowledged the non- trial, person, being may No while held for capital referral of his case on the record subjected punishment penalty be or oth- prior acceptance to the plea. of his upon er than arrest or confinement (R. 1392). Clark, See United States v. 35 MJ charges him, pending against nor shall the (CMA 1992); 433 n. 1 imposed United States upon arrest him cf. McFarlane, any 8 USCMA 23 CMR rigorous be more than the circum- (1957). Finally, presence, WL 4490 the failure to stances to insure his (not writing may subjected punish- reduce the but he re-referral the re- to minor itself) during referral ment for infractions of was technical in nature and discipline. deprive appellant did not of the essential protections of the above-noted statutes. See Absent affirmative waiver of this issue at Stinson, United States v. 238 trial, we have considered claims under this (CMA 1992), Gebhart, citing United States v. provision codal raised for the first time on (CMA 1992), 34 MJ 189 appeal. Huffman, MJ Jette, (CMA 1987). (CMA Clearly, 25 MJ 16 1994); our see United States v. *6 Combs, (1997).5 recognized 330, case law has that common sense 47 MJ 333 prevail in must these circumstances. See In McCarthy, United States v. 47 (CMA Yates, 60, United States v. 28 MJ 63 162, (1997), recognized MJ 165 this Court 1989). Therefore, appellant on loses Issue 13, UCMJ, prohibits that Article both the II. purposeful imposition punishment of on a prior accused to court-martial and pretrial confinement conditions which are (C) rigorous more than the circumstances re

Pretrial Punishment quired presence. to ensure an accused’s Moreover, recognized this Court also in (Granted I) Issue Miller, 248, v. 46 MJ 250 The other in issue raised this case con- (1997), purposeful that the denial of the con appellant’s post-trial cerns claim that he was rights a in stitutional of servicemember while unlawfully placed pretrial confinement and pretrial might illegal constitute unlawfully punished while that status. His pretrial punishment permitting sentence that, light initial contention is of his exem- Finally, credit. we have held that the failure plary performance, service he should not object military magistrate to a or chain of solely have been confined on the basis of an strong command is evidence that unlawful allegation 5-year-old of a pretrial punishment murder. See RCM did not occur.6 See 305(h)(2)(B)(iii).4 Huffman, His second contention is supra United States v. at 227. generally appeal, knowing 4. We find no merit to this claim. See on we do not find a and intelli- Gaither, 349, (1996) gent Combs, United States v. 45 MJ 352 waiver of this issue. See United States v. (abuse-of-discretion 330, standard). 333-34 clearly Appellant’s 5. In view of unrebutted that assertion 6. affidavit dated June 1995 repeatedly protested no motion sentence credit based on unlawful indicates that he treat- Jacobs, pretrial punishment was made at his trial on ment to Chief counsel- Senior the senior advice of defense counsel that it could be raised or at the

155 may be body an accused nor mind of inquiry princi these Our first under breaks”) (opinion Frank- legal twisted until appellant has raised a ples is whether 539, J.); 441 at furter, Wolfish, v. U.S. true, Bell which, if entitle him to claim would “if a (noting that restriction 99 1861 47 at S.Ct. v. MJ relief. See United States legiti- reasonably to a is not related condition avers, alia, days for 326 244. He inter permissi- [government] goal ... court cell, mate per day, 15 in his 23 hours he was locked govern- purpose of bly may that the n 2 infer sit at small of which he was may not punishment action mental asleep nearby if he fell desk or stand wooden upon constitutionally inflicted detainees majority court A of the below at desk. detainees”); v. Ruth- generally Block qua see alleged affi held that the facts 3227, 583-84, 576, erford, 104 468 U.S. S.Ct. result in relief or were davits would not (1984). Here, appellant sub- 82 438 L.Ed.2d improbable. compellingly demonstrated to be confine- post-trial that the mitted a affidavit disagree. 48 MJ at 550. We imposing a contin- ment authorities’ intent uous on him as a detainee lockdown alleged The above are of his coerce confession violation impositions de “de minimis” on rights. v. See Hamilton constitutional is not concerned. tainee which law (5th Cir.1996). 99, Lyons, 74 F.3d 103 21, 441 Wolfish, Bell v. 539 n. See U.S. prison particularly official’s affidavit does not (1979), quoting 60 447 99 S.Ct. L.Ed.2d deny charge impliedly least dis- but at 651, 674, Ingraham Wright, v. 430 U.S. 97 putes on the such an intent (1977); L.Ed.2d see also S.Ct. 51 711 Harris, v. 172 F.3d Rapier authorities. City Moberly, 35 Cf. McClanahan (7th Cir.1999) (placing pretrial 1002-03 (and (E.D.Mo.1998) F.Supp.2d 745-46 days solitary detainee confinement for therein). Instead, they “gen cited cases are maintaining expressly objective of based on privations hardship an uine over extend jail safety personnel of other inmates time,” “might ed which raise seri legitimate government purpose). found to be questions ous under the Process Due Clause circumstances, a factual decision these as to whether those conditions amounted to officials is also intent detention punishment.” Wolfish, Bell v. U.S. necessary appellant was to decide whether 1861; Elrod, see Duran v. S.Ct. also subjected illegal punishment. See (7th Cir.1985); 760 F.2d Pippins Ginn, supra Jail, County F.Supp. Adams *7 (C.D.Ill.1994). fact, pointed by In out the as appropriate of unlawful The resolution this below, dissenting judge to conditions similar pretrial punishment is to this claim remand pretrial Id.; appellant’s alleged DuBay hearing. case McMilli for a see previously Johnson, There, “far oner been considered more an v. 88 F.3d 1564-65. [appel ous than would be to assure fully the developed the can as to record be (Leo, J., presence.” 47 lant’s] MJ at 551 actually imposed appellant dur dissenting), quoting v. United States Palmi ing intent of confinement and the s ter, 90, C.J., (Everett, concurring 20 MJ 99 in imposing condi detention official in those result). Finally, particular appellant’s Fricke, v. 48 MJ at tions. See United States allegations, by prison J., Ginn, (Leo, corroborated second dissenting); MJ 550-51 47 knowledge 236; 225; er with direct the conditions of of Huffman, Bell v. 40 MJ see also confinement, by post-trial 537-39, opposed were Wolfish, 441 U.S. at 99 S.Ct. 1861 (for prison as to assertions of administrator pretrial con test to determine whether general practices. punish United States unconstitutional finement constitutes Cf. Combs, (essentially ment). supra v. unrebutted case). (D) addition, coercing In a confession is not a Conclusion objective.

legitimate governmental See Cu- Connecticut, 568, 584, Navy- of the v. 367 81 The decision lombe U.S. (1961) (“neither Appeals is Corps Court of Criminal 6 L.Ed.2d 1037 Marine S.Ct. 156 dio; findings organizations;

affirmed to set but aside as to assistance and rehabilita- programs. sentence. The record of is tion trial returned to Judge Navy Advocate General of the majority by concluding is correct proceedings further in with accordance true, if allegations appellant these are would opinion DuBay, United and States 17 However, be relief. entitled to unlike the USCMA 37 1967 CMR WL 4276 record, majority, I find that the and logic, (1967). proceedings After such are conclud- together “compellingly common sense dem- ed, trial, along of record with improbability onstrate” the of facts al- judge’s findings of fact and conclusions of leged by appellant. United States v. Cf. law, will of be returned the Court Criminal 47 MJ 248 Appeals for further under review Article 66(c), Military Justice, First, appellant Uniform Code of 10 38-year-old was a Lieu- 866(c)(1994). Thereafter, § USC Article extensively litigated tenant Commander who 67(a), UCMJ, 867(a)(1994), will necessity for his confinement. apply. Yet, him, appellant one is believe failed pre- mention “horrific and these onerous” magistrate trial conditions either to the or CRAWFORD, Judge (concurring Chief in Second, military judge. the conditions part dissenting part): and appellant which claims he had to endure are agree I disposition with the Court’s of strikingly similar to those to have ex- found I, Issue II. As to my Issue consistent with Brig, Navy isted at the and Charleston which Huffman, views in States v. United we found to a violation Article (CMA 1994)(Crawford, J., dissenting 228 Palmiter, United supra. States Either result), part concurring in the Department Navy has decided to Combs, MJ 334 authority flout this Court and reinstate (1997)(Crawford, J., I dissenting), would hold pretrial confinement conditions that we con- has claim waived his concern- demned, pre- recitation of his ing by pretrial punishment failing unlawful trial confinement conditions is other than magistrate raise the matter before either the reality. suggest Accordingly, I the latter. I military judge. or the Appeals would affirm the Court of Criminal I decision. though dispose Even would Issue I waiver,

applying I find that fail- complain “strong ure to evidence” that he GIERKE, Judge (concurring punished violation 13. dissenting part): 227; Huffman, supra see States v. United James, (CMA agree I 1989); majority’s with the resolution of MJ 214 United (CMA view, Palmiter, 1985). my Issue II. I was Issue waived. States v. MJ MJ-225, Huffman, United States v. 228-29 spent days con- (CMA 1994). complained finement. He for the first time *8 1995, nearly year demonstrating June after his court- This is one more case martial, 905(e). he that was sit at a small wisdom waiver in RCM rule 6-by-8-foot inexperienced wooden within his an desk cell for is not sailor. As notes, day, per majority alleged hours or stand “for at the hours” time of 15% asleep 38-year-old should he fall at that desk. He offenses in was was commis- prisoners. years talk with By allowed to other He sioned officer with 17 of service. only permitted was to read Bible or the time he was tried he was light eligible. Christian literature of one 40- 40s and did not retirement find bulb, light prohibited watt but from at- his conditions confinement suffi- tending ciently challenge church services and Bible them at studies. onerous trial. view, my majority opinion He was denied amenities sentenced the result of the prisoners: sandbagging by is to appellant, access recreational facilities allow television; equipment; newspapers; ra- leave the court below with Hobson’s stale, opinions in majority minority investigating 6-year-old both the

choice of Huffman, allegation giving appellant a windfall. military judges would conclude plea inquiry a question their with whether note, I As a final believe pun- any there is claim unlawful guilty-plea cases issues in future could easily resolved in a manner consistent with ishment.