Case Information
*1 UNITED STATES, Appellee
v.
Malcolm M. MACK, Aviation Machinist’s Mate Airman
U.S. Navy, Appellant No. 06-0943
Crim. App. No. 200400133 United States Court of Appeals for the Armed Forces Argued March 13, 2007 Decided June 19, 2007 EFFRON, C.J., delivered the opinion of the Court, in which BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USN (argued). For Appellee: Captain Roger E. Mattioli , USMC (argued); Commander Paul C. LeBlanc, JAGC, USN (on brief).
Military Judge: J. S. Brady
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
*2
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of
conspiracy to obstruct justice, breaking restriction (seven
specifications), and wrongfully attempting to influence the
testimony of a witness (three specifications), in violation of
Articles 81 and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 881, 934 (2000). The sentence adjudged by the court-
martial and approved by the convening authority included a
dishonorable discharge, confinement for six months, hard labor
without confinement for three months, and reduction to pay grade
E-1. The United States Navy-Marine Corps Court of Criminal
Appeals affirmed the findings of guilty, reduced the
dishonorable discharge to a bad-conduct discharge, and approved
the balance of the sentence. United States v. Mack, No. NMCCA
200400133,
On Appellant’s petition, we granted review of the following issues:
I. WHETHER THE LOWER COURT ERRED BY HOLDING THAT THE MILITARY JUDGE’S DECISION TO SUBMIT THE ISSUE OF THE LAWFULNESS OF APPELLANT’S RESTRICTION ORDER TO THE MEMBERS WAS HARMLESS.
II. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT CONSPIRED WITH JOHN DOE TO OBSTRUCT JUSTICE WHERE THERE IS NO *3 EVIDENCE IN THE RECORD THAT JOHN DOE EVER EXISTED.
III. WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE LOWER COURT DECIDED APPELLANT’S CASE 1,830 DAYS AFTER HIS COURT- MARTIAL.
For the reasons set forth below, we affirm.
I. PRETRIAL RESTRICTION (ISSUE I)
A. BACKGROUND
1. The pretrial restriction order
A servicemember facing criminal charges may be subjected to
various forms of pretrial restraint pending court-martial,
including confinement, arrest, restriction, or conditions on
liberty. Rule for Courts-Martial (R.C.M.) 304(a). A pretrial
restriction order generally includes specific conditions
designed to prevent additional criminal misconduct and maintain
accountability of the accused. R.C.M. 304(c) Discussion.
Various conditions may be ordered if they are “reasonably
necessary to protect the morale, welfare, and safety of the unit
(or the accused); to protect victims or potential witnesses; or
to ensure the accused’s presence at the court-martial or
pretrial hearings.” United States v. Blye,
Appellant, who was under investigation for selling illegal drugs during an undercover operation, was placed in pretrial confinement for thirty-four days. Subsequently, he was released after a reviewing officer determined that less restrictive forms of restraint would suffice. Following his release from confinement, Appellant’s commanding officer immediately placed him on restriction because of information that Appellant was dealing drugs on the military installation, both at his workplace and from his car. The period of pretrial restriction lasted for 143 days.
The pretrial restriction order restricted Appellant to Marine Corps Air Station, New River, North Carolina. The order also contained the following conditions: (1) a requirement to muster at specified times during work days and at other specified times on non-work days; (2) a requirement to carry a log at all times that recorded his musters; (3) a prohibition on use of the telephone except for monitored calls with his wife and legal representative; (4) a limitation to supervised visits with his wife; (5) a prohibition on operating or riding in an automobile; (6) restriction to his barracks room during non-duty hours, with limited exceptions; (7) a prohibition on going to specified shopping, recreational, and entertainment venues on *5 the base, with limited exceptions for supervised visits; (8) a limitation on exercise to battalion activities; (9) a prohibition on wearing civilian clothing; (10) a prohibition on consumption of alcoholic beverages; and (11) a limitation to eating in the base mess hall, with a requirement that he check in and out with the staff duty officer.
2. Charges based upon violations of the pretrial restriction conditions
A servicemember who violates one or more of the conditions of pretrial restriction may be charged with an offense under the Uniform Code of Military Justice. See Manual for Courts- Martial, United States pt. IV, paras. 16, 102 (2005 ed.) (MCM). Appellant was charged with violating three of the conditions of restriction: (1) failure to muster; (2) riding in or driving a car; and (3) making phone calls to individuals other than his wife and lawyer. As noted in section I.A.4., infra, Appellant ultimately was convicted of violating two of the conditions: failure to muster and riding in or driving a car.
3. Sentence credit based upon the conditions of pretrial restriction
Pretrial restriction is not punishment and may not be used
as such. R.C.M. 304(f). A person accused of a crime retains
the presumption of innocence and may not be punished pending
trial. Article 13, UCMJ, 10 U.S.C. § 813 (2000). If conditions
of pretrial restraint are more rigorous than necessary to ensure
*6
the presence of an accused at trial or to prevent additional
misconduct, the accused may receive credit against the adjudged
sentence. United States v. King,
In a pretrial motion, Appellant asserted that the conditions of his restriction order did not fulfill a legitimate military purpose and imposed illegal pretrial punishment in violation of Article 13. After conducting a hearing on the motion, the military judge provided a detailed ruling. The military judge found that the command had placed Appellant in pretrial confinement because of “the risk of flight of the accused, the detriment to the safety of the training command with drug distribution to students, and the potential for retribution against the confidential witness in the undercover operation.” After reciting the circumstances involving Appellant’s release from pretrial confinement and the ensuing order into pretrial restriction, the military judge concluded that the command “did not inten[d] to punish him by placing him in pretrial restriction upon his release from pretrial *7 confinement. The concerns elicited in evidence were for legitimate nonpunitive government purposes.”
Although he did not rule that the decision to place Appellant on pretrial restriction constituted an illegal order, the military judge determined that “the facts also bear out unduly rigorous circumstances during this period of pretrial restraint.” The military judge identified three aspects of the pretrial restriction order that supported his conclusion that the restriction involved “unduly rigorous circumstances.” First, after noting that Appellant’s wife was not a suspect, he concluded that the limitation of Appellant and his wife to supervised visitations was “not directly linked to a valid, governmental purpose and intruded on the sanctity of his marriage, a right which is often protected under a number of rights in the Constitution of the United States.”
Second, the military judge concluded that the monitoring of Appellant’s phone calls to his counsel “chilled his ability and freedom to speak in a protected environment under the attorney/client relationship, intruding upon [Appellant’s] . . . Fifth and Sixth Amendment rights to counsel.”
Third, the military judge concluded that “the terms of [Appellant’s] restriction, particularly requirements which did not directly serve the purpose of ensuring his presence at trial, were unnecessary and unduly onerous.” The military judge *8 stated that the command “placed him in an area with persons serving punishment and persons stigmatized with pending discharges for misconduct.” In addition, “[o]ver [Appellant’s] objections, and while other reasonable accommodations likely became available, he was restrained from the freedom of movements [sic] and unduly restricted from activities which serve no legitimate governmental purpose.” The military judge did not address specifically the two conditions of restriction that Appellant was convicted of disobeying -- the muster requirement and the prohibition on riding in or driving an automobile.
Based upon his conclusion that conditions more rigorous
than necessary had been imposed on Appellant during his period
of pretrial restriction, the military judge granted Appellant
day-for-day credit for the 143 days that he spent on pretrial
restriction. See Stringer,
*9 4. The defense motion to dismiss the charge of breaking restriction
After the military judge granted sentence credit for the Article 13 violation, and again at the close of the Government’s case-in-chief, Appellant moved to dismiss the charge of breaking restriction and its specifications, contending that the conditions of Appellant’s restriction were unlawful. As noted in section I.A.2., supra, Appellant was charged with violating three conditions of his restriction: the requirement to muster, the prohibition on riding in or driving a car, and the limitation on making phone calls to individuals other than his wife and lawyer.
The military judge denied the motion on the grounds that the legality of Appellant’s restriction presented a “mixed question of law and fact” that he would submit for decision by the members of the court-martial panel. Prior to the panel’s deliberation on findings, the military judge instructed the panel members on the elements of breaking restriction, see MCM pt. IV, para. 102.b., and on the factors bearing on the legality of the restriction, see R.C.M. 304. The members acquitted Appellant of breaking restriction by making telephone calls (two specifications), but convicted him of breaking restriction by failing to muster on specific occasions (five specifications) *10 and by riding in or driving a car during the period of restriction (two specifications).
B. THE ROLE OF THE MILITARY JUDGE IN DETERMINING THE LEGALITY
OF AN ORDER
When the legality of an order is at issue, the issue must
be decided by the military judge, not the court-martial panel.
See United States v. Deisher,
C. DISCUSSION
In the present case, the military judge erred by treating the legality of the restriction order as a mixed question of fact and law to be resolved by the members. As a matter of law, the presence of factual questions did not relieve the military judge of his responsibility to decide, as a preliminary matter, whether the order in the charged offenses was lawful. Id. at 318; see R.C.M. 905(d).
Appellant contends that the issue of legality was resolved at trial adverse to the prosecution when the military judge granted sentence credit on the grounds that the pretrial restriction violated the requirements of Article 13. According to Appellant, the military judge’s Article 13 ruling, which was not appealed, constitutes the law of the case, and should preclude de novo review of the legality of the order.
The record, however, does not support the defense contention that the military judge determined the pretrial restriction order to be void in its entirety. The pretrial restriction order consisted of at least eleven separate conditions. See section I.A.1., supra. In the course of ruling on the defense motion for sentence credit under Article 13, the military judge commented on a number of specific conditions but *12 did not conclude that the order as a whole was invalid. See section I.A.3., supra. His act of submitting the issue of lawfulness to the members, while erroneous, underscores that he did not conclude as a matter of law that the order was unlawful in its entirety. Under these circumstances, the law of the case doctrine does not require us to treat the military judge’s decision to provide sentencing credit under Article 13 as a determination that every aspect of the pretrial restriction order was unlawful.
The restriction order in the present case does not involve
conditions that are so closely integrated that they must stand
or fall together. Here, the conditions are sufficiently
distinct that they may be evaluated separately for purposes of
our de novo review of legality. See Blye,
Only two of the pretrial restriction conditions resulted in convictions that are at issue in the present appeal -- the requirement to muster and the prohibition on riding in or driving a car. Neither condition was relied upon expressly by *13 the military judge as a basis for providing sentence credit under Article 13.
The essential attributes of a lawful order include: (1)
issuance by competent authority; (2) communication of words that
express a specific mandate to do or not do a specific act; and
(3) relationship of the order to a military duty. Id. at 317;
MCM pt. IV, para. 14.c.(2)(a). “An order is presumed lawful,
and the accused bears the burden of rebutting the presumption.”
Deisher,
In the present case, the first two attributes -- issuance by a competent authority and the specificity of the communication -- are not at issue. Our focus is on the relationship between the condition at issue and a military duty.
Muster requirements are often imposed as a condition of
pretrial restriction. See United States v. Hudson,
Cherok,
The prohibition against riding in or driving a car also was imposed because Appellant was suspected of selling drugs from cars and meeting potential drug customers in cars. His commander sought to prevent him from continuing to engage in drug sales from vehicles. This condition was imposed to ensure that Appellant remained on the installation, was available for trial, and did not engage in additional misconduct. Appellant has not rebutted the presumption of lawfulness by demonstrating that this condition did not fulfill a military duty or that it was otherwise unlawful.
In light of the foregoing considerations, we conclude under
the circumstances of this case that the military judge’s error
in submitting the question of lawfulness of the conditions of
restriction to the panel members was harmless. See United
States v. Alameda,
A. BACKGROUND
Appellant was charged with selling cocaine to Mr. D, a known drug dealer who was cooperating with Naval Criminal Investigative Service. In addition, Appellant was charged with a number of related offenses concerning his interaction with Mr. D, including communicating three separate threats to kill Mr. D or his family if Mr. D testified at Appellant’s court-martial, and conspiring with “John Doe” to obstruct justice by threatening to kill Mr. D.
At trial, the prosecution introduced the following evidence with respect to the charged conspiracy and related threats. Mr. D, the cooperating witness, lived with his mother. During the two months before Appellant’s court-martial, Mr. D’s mother received three telephone calls and a package threatening violence if Mr. D testified at Appellant’s court-martial. The first two telephone calls were traced to Appellant’s home phone number. The package was addressed to Mr. D and contained two 9mm bullets with Mr. D’s name attached. The package included the following note:
Don’t be stupid! They can’t and won’t protect you. Especially with people like [various names] . . . after you. We hear they’ve got about $10,000 for your head. But, that’s the least of your worries. If you show to F[. . .] over my partner, I promise that ten- grand will be collected ASAP. We’ll also see to it that your address and number be well known. So be *16 smart . . . live and let live, or BE A DEAD HERO!!!! They’ve used you, don’t let them get you KILLED!!!!!. Subsequently, Mr. D’s mother received a third telephone call, which she recorded on her answering machine. She testified that a male voice asked “Did you get my mail?” The male voice also said “don’t be brave” and used the word “dead.” Then she heard what appeared to be the sound of a person taking the phone away from the male caller, and a female voice saying “Not on the phone . . . Don’t say that.” The female voice then spoke into the phone, saying “Bitch don’t call. My number is 404-***-*****.” Mr. D testified that he listened to the recorded message and identified the male caller as Appellant. Mr. D stated that the threats made him feel “uneasy” about testifying at Appellant’s court-martial.
The prosecution argued that the conspiracy charge was supported by the evidence that someone mailed the threatening package to Mr. D’s mother on Appellant’s behalf, and by the evidence that the third telephone call was made by Appellant and an unknown female asking whether the mail was received, accompanied by further threats.
With respect to the conspiracy charge, the military judge instructed the members that they must be convinced beyond a reasonable doubt that: (1) Appellant entered into an agreement with an unknown person to commit an obstruction of justice; and *17 (2) while the agreement continued to exist, Appellant, the unknown person, or both threatened to kill Mr. D or his family if he testified against Appellant at the court-martial. See MCM pt. IV, para. 5.b. (elements of conspiracy); MCM pt. IV, para. 96.b. (elements of obstruction of justice).
The panel members convicted Appellant of conspiring with “John Doe” to obstruct justice by threatening Mr. D. The members also convicted Appellant of three specifications of communicating a threat, based on the two telephone calls traced to Appellant’s phone and the package containing the note and bullets.
B. LEGAL SUFFICIENCY
Appellant contends that the evidence was insufficient as a matter of law to show that he conspired with another person to commit the offense of obstruction of justice. Appellant points out that the evidence did not show that any person other than Appellant mailed the package with the threatening note. In that regard, the findings indicated that Appellant mailed the package and made the first two threatening phone calls.
Appellant further contends that the existence of a conspiracy with another person could not be established by the third telephone call to Mr. D’s mother, which featured the voices of both Appellant and an unknown female. Appellant asserts that this evidence is insufficient because he was *18 charged with conspiring with “John Doe,” not a female, and because the content of the third telephone call did not demonstrate a prior conspiracy.
The standard for determining the legal sufficiency of
evidence supporting a guilty verdict is “whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia,
The prosecution is not required to establish the identity
of co-conspirators or their particular connection with the
criminal purpose. MCM pt. IV, para. 5.c.(1). The agreement in
a conspiracy need not be in any particular form or manifested in
any formal words. MCM pt. IV, para. 5.c.(2); United States v.
Cobb,
Considering the evidence in the light most favorable to the prosecution, a rational factfinder could have found beyond a *19 reasonable doubt that Appellant and the female caller had an agreement to threaten Mr. D with violence and intimidate him from testifying at Appellant’s court-martial. The members could have concluded that the woman recorded on the third telephone call was coaching Appellant in an attempt to make their threats credible. She was heard instructing him not to mention the package. The members could have determined that the female listed a nonexistent telephone number to confuse Mr. D’s mother or to obscure the caller’s identity. Moreover, the woman threatened Mr. D’s mother directly by saying, “Bitch, don’t call me.” This evidence, taken together, could have led a rational factfinder to the conclusion that Appellant and the unknown female were working together to frighten Mr. D from testifying against Appellant at his court-martial. The fact that the co- conspirator in this case was not a male “John Doe” as alleged in the specification to Charge I, but instead was a female, carries no legal significance.
We conclude that the third threatening telephone call to
Mr. D’s mother -- in light of the package and the threatening
note mailed to her -- provided sufficient evidence for a
rational factfinder to determine that Appellant conspired with
an unknown female to obstruct justice by threatening harm to Mr.
D or his family. See Jackson,
III. POST-TRIAL AND APPELLATE DELAY
We review de novo Appellant’s claim that he was denied his
due process right to a speedy post-trial review and appeal.
United States v. Moreno,
With respect to the overall post-trial and appellate
period, we review a claim of a due process violation under the
test set forth in Moreno,
IV. CONCLUSION
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.