UNITED STATES, Appellee, v. Marcus L. STARR, Senior Airman, U.S. Air Force, Appellant.
No. 99-0999. Crim.App. No. S29510.
U.S. Court of Appeals for the Armed Forces.
Argued March 23, 2000. Decided Aug. 25, 2000.
53 M.J. 380
For Appellant: Major Stephen P. Kelly (argued); Colonel Jeanne M. Rueth (on brief).
For Appellee: Captain Peter J. Camp (argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief).
Chief Judge CRAWFORD delivered the opinion of the Court.2
Pursuant to his pleas, appellant was convicted of two specifications of larceny and one specification of house-breaking, in violation of
The Court of Criminal Appeals set aside the bad debt conviction and dismissed that charge but affirmed the sentence. We granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING DEFENSE COUNSEL‘S MOTION FOR CONFINEMENT CREDIT FOR UNDERGOING PRETRIAL PUNISHMENT IN VIOLATION OF ARTICLE 13, UCMJ.
For the reasons set forth below, we hold that the judge was correct in denying confinement credit.
FACTS
Appellant was a bomb dog trainer assigned to the 51st Security Forces Squadron, Osan Air Base, Republic of Korea. On or about February 17, 1997, soon after appellant came under suspicion for the misconduct that formed the basis for the charges here, he was reassigned to “X-Flight.” X-Flight was an extraordinary unit within the 51st Security Forces Squadron that was composed solely of personnel who could not, or were not permitted to, perform security forces duties. Such personnel included those who were facing disciplinary or administrative action, under investigation, performing extra duties pursuant to punishment under
Upon being reassigned to X-Flight, appellant was ordered to surrender his Security Police beret to the first sergeant. Only those personnel who were reassigned for disciplinary reasons, however, were required to surrender their berets. The Security Police beret is a symbol of integrity and membership in an elite unit. According to the squadron‘s first sergeant, personnel were required to surrender their berets when their integrity came into question. One of the stated reasons that berets were surrendered was to correct the individual‘s behavior. On numerous occasions, appellant unsuccessfully requested to be removed from X-Flight. In addition, trial defense counsel also unsuccessfully requested that the squadron commander remove appellant from X-Flight.
At sentencing, trial defense counsel asked the court to give two-for-one administrative pretrial credit for the period February 17 through November 18, 1997 (275 days)—the
Based on these findings, the trial judge held that the surrender of the beret and the placement into X-Flight furthered a legitimate government interest:
The court finds that the purpose in placing the accused in X Flight and removing his beret was not punishment. Rather it was to ensure that he would be productively utilized pending investigation into the alleged misconduct. As he could not carry a weapon and perform Security Police duties, he was not a fully functioning Security Policeman and, therefore, was asked to surrender his beret.
The court also finds that the surrender of the beret and the placement into X Flight furthers a legitimate non-punitive governmental purpose. The surrender of the beret pending investigation ensures that the beret continues to symbolize the high standards and integrity that those who proudly wear them and the public they serve have come to view them. Because they are so proudly owned by members of the Security Police, they provide a great incentive to those who must temporarily lose them to gain the trust of their unit, and for those who might contemplate misconduct, the
specter of the loss of the beret provides a clear deterrent.
DISCUSSION
The prohibition on pretrial punishment is codified in
No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.
For approximately 9 months, appellant never complained to his first sergeant nor the commander about his assignment to the special detachment or the loss of his beret. Hence, as noted by the defense, the issue in this case is whether there was a legitimate, nonpunitive basis for placing appellant in X-Flight and for ordering appellant to surrender his Security Police beret to his first sergeant. See, e.g., United States v. Cruz, 25 MJ 326 (CMA 1987) (apprehending individuals in front of unit formation and then ridiculing them was punishment under
As we held in United States v. Smith, 53 MJ 168, 170 (2000), we examine the military judge‘s factual findings as to the intent to punish to see if they are clearly erroneous. In this instance, we hold that they were not.
The trial judge set forth and applied the correct test: was there an intent to punish or stigmatize a person awaiting disciplinary action, and if not, were the conditions (surrender of the beret and placement into X-Flight) in furtherance of a legitimate, nonpunitive, government objective. See United States v. Phillips, 42 MJ 346 (1995); see also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). There was neither illegal punishment nor deprivation of liberty tantamount to confinement to be found in this case. The measures undertaken here simply do not rise to the level of pretrial punishment under
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
EFFRON, Judge (concurring in part and in the result):
Although I would apply a de novo standard of review, I agree with the majority‘s conclusion that the actions taken in this case do not demonstrate a purpose or intent to punish, as those terms are applied to an issue under