UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600207

_________________________

UNITED STATES OF AMERICA

Appellee

v.

MATTHEW A. HARRIS

Lance Corporal (E-3), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel David M. Jones, USMC.

Convening Authority: Commanding Officer, Marine Corps Air 

Station Beaufort, SC.

Staff Judge Advocate’s Recommendation: Major Brett R. Swaim, 

USMC.

For Appellant: Lieutenant Jacob E. Meusch, JAGC, USN.

For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Commander 

Justin C. Henderson, JAGC, USN.

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Decided 15 August 2017

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Before GLASER-ALLEN, MARKS, and FULTON, Appellate Military 

Judges

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This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

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FULTON, Judge:

A military judge sitting as a general court-martial convicted the 

appellant, in accordance with his pleas, of one specification each of attempted 

robbery, desertion, and aggravated arson, in violation of Articles 80, 85, and 
United States v. Harris, No. 201600207

2

126, Uniform Code of Military Justice (UCMJ).1 The military judge sentenced 

the appellant to eight years’ confinement, reduction to pay grade E-1, 

forfeiture of all pay and allowances, and a dishonorable discharge. In 

accordance with a pretrial agreement, the convening authority suspended all 

confinement in excess of 72 months. The convening authority approved the 

sentence and, except for the punitive discharge, ordered it executed.

In his sole assignment of error, the appellant alleges that the military 

judge erred by granting him only 23 days of confinement credit where the 

government failed to comply with RULE FOR COURTS-MARTIAL (R.C.M.) 

305(i)(2)(D), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) for 

126 days. After careful consideration of the record of trial, the pleadings of 

the parties, and oral argument, heard on 6 April 2017 at George Mason 

University’s Antonin Scalia Law School, we conclude that the findings and 

the sentence are correct in law and fact and that no error materially 

prejudicial to the substantial rights of the appellant occurred.2

I. BACKGROUND

To avoid cleaning his on-base residence and paying for damages to it, the 

appellant burned his government quarters. Facing legal action for the arson, 

he deserted and attempted to rob a gas station. 

On 12 May 2015, U.S. Marshals arrested the appellant and returned him 

to the military, at which time the appellant’s commander placed him in 

pretrial confinement.3 On 20 May 2015, the initial reviewing officer (IRO) 

conducted a hearing in accordance with R.C.M. 305(i)(2) and concluded that 

the appellant should remain in confinement.4

The IRO drafted a memorandum detailing his conclusion, attaching his 

factual findings to the memorandum as Enclosure (1).5 The factual findings 

that supported continued confinement stated in their entirety: “Based on 

severity of the accusation Article 126 (Aggravated Arson) and Evidence of 

Desertion letter and 72-Hour letter and missing for 3-weeks.”6

 

1 10 U.S.C. §§ 880, 885, and 926 (2012).

2 Arts. 59(a) and 66(c), UCMJ.

3 Record at 397.

4 Appellate Exhibit (AE) XIX at 17-20.

5 Record at 416-17; AE XIX at 2, 17-20.

6 AE XIX at 20.
United States v. Harris, No. 201600207

3

By 9 September 2015, the day of the arraignment, the appellant had 

received a copy of the IRO’s memorandum. Enclosure (1), however, was not 

turned over to the appellant. 

At arraignment, counsel for the appellant and the government submitted 

a draft trial management order. The parties were in agreement on the 

relevant milestones but had not yet agreed on a trial date. The parties agreed 

to litigate motions on 29 October. The draft order anticipated a second 

motions hearing on 2 December.

Defense counsel submitted a discovery request on 15 September 2015, 

asking for, among other things, copies of all R.C.M. 305 matters, “to include . 

. . the 7-day review officer’s memorandum detailing his conclusions regarding 

any continued pretrial confinement and all factual findings on which they are 

based.”7 The government responded on 7 October 2015, saying in relevant 

part that, “Copies of . . . the 7-day review officer’s memorandum detailing his 

conclusions any continued pretrial confinement will be provided.”8 Two days 

later, defense counsel emailed government counsel a list of discovery items 

that the defense counsel viewed as still outstanding. The list did not include 

the IRO’s Memorandum or Enclosure (1).9

The parties again appeared before the military judge, as scheduled, on 29 

October. Although the parties litigated several motions, defense counsel did 

not move to compel discovery of Enclosure (1). Neither party mentioned the 

IRO’s memorandum or Enclosure (1) at the motions hearing. 

Later, the parties agreed to forgo the Article 39(a), UCMJ, session 

scheduled for 2 December, as they had entered pretrial agreement 

negotiations.10

On 17 December 2015, the convening authority approved the appellant’s 

pretrial agreement offer.11 The pretrial agreement specified that defense 

counsel could file pretrial motions up until seven days before the courtmartial.12 On 12 January 2016, seven days before trial, the appellant filed a 

motion for confinement credit based on the government’s failure to comply 

with R.C.M. 305(i)(2)(D), which requires the government to provide the IRO’s 

 

7 AE V at 17; AE XIX at 2.

8 AE V at 39.

9 AE XIX at 24.

10 Record at 217-18.

11 AE XX at 7. 

12 Record 394; AE XX at 3. 
United States v. Harris, No. 201600207

4

findings to an accused on request.13 On 16 January 2016, government counsel 

complied with R.C.M. 305(i)(2)(D) by providing the appellant with a copy of 

Enclosure (1).14

The appellant argued that he was entitled to 126 days of credit. This 

number reflects one day of credit for every day between (and including) the 

day the appellant’s counsel requested the memorandum and the day he 

received Enclosure (1). 

The military judge found that the government’s failure to provide 

Enclosure (1) to the defense was a technical violation of R.C.M. 305(i)(2)(D).15

But he declined to award the appellant a “windfall” by granting credit for all 

126 days.16 Instead, he awarded only 23 days of confinement credit—from 7 

October 2015, when the government first responded to the defense discovery 

request, to 29 October 2015, the date of the first post-arraignment Article 

39(a) session.17

II. DISCUSSION

The appellant alleges that the military judge erred by refusing to award 

confinement credit for the full 126 days from the initial discovery request 

until the defense received Enclosure (1) shortly before trial. We review the 

military judge’s determination for an abuse of discretion.18 We review his 

findings of fact under a clearly erroneous standard.19 Legal findings, 

including whether an appellant is entitled to pretrial confinement credit, are 

reviewed de novo.

20

R.C.M. 305(i)(2)(D) requires that the IRO’s written conclusions, including 

the factual findings on which they are based, be provided to the accused on 

request. If the government fails to comply with this provision, R.C.M. 305(k) 

sets forth the remedy: “an administrative credit against the sentence 

adjudged for any confinement served as the result of such noncompliance. 

 

13 AE XVIII at 1.

14 AE XIX at 17.

15 Record at 417-19.

16 Id. at 420.

17 Id.

18 United States v. Adcock, 65 M.J. 18, 24 (C.A.A.F. 2007).

19 United States v. Diaz, 61 M.J. 594, 602 (N-M. Ct. Crim. App. 2005), aff’d on 

other grounds, 64 M.J. 176 (C.A.A.F. 2006) (summary disposition).

20 United States v. Atkinson, 74 M.J. 645, 647 (N-M. Ct. Crim. App. 2015) (citing 

United States v. Smith, 56 M.J. 290, 293 (C.A.A.F. 2002)).
United States v. Harris, No. 201600207

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Such credit shall be computed at the rate of 1 day credit for each day of 

confinement served as the result of such noncompliance.”

The military judge agreed that the government was in technical violation 

of R.C.M. 305, but viewed the violation and the remedy through the lens of 

the discovery process. He found that the violation began when the 

government failed to include Enclosure (1) in its delivery of the IRO’s 

memorandum. And he determined that the date of the Article 39(a) hearing—

when the appellant might reasonably have been expected to move to compel 

discovery of Enclosure (1)—was the point at which the appellant could no 

longer remain silent and continue to harvest mounting day-for-day credit.

The appellant argues that the military judge erred by imposing “an 

additional, unwritten, and unjustified burden on [the appellant]—requiring 

the Defense to make repeated requests for a copy of the IRO’s memorandum 

and factual findings in order to receive day-for-day credit[.]”

21 The appellant 

notes that the military judge “even went so far as to characterize this 

requirement as an ‘affirmative duty,’ stating, ‘[t]his court believes the defense 

had an affirmative duty . . . to bring it to the court’s attention on 29 

October.”22 Since nothing in the Rules for Courts-Martial requires an accused 

to repeatedly request these matters, the appellant argues that the military 

judge erred by holding his silence against him.

For its part, the government notes that the plain language of R.C.M. 

305(k) provides for day-for-day credit for confinement served as a result of a 

violation. The government argues that since the appellant cannot 

demonstrate that he served any days in pretrial confinement as a result of 

the violation, he is not entitled to any days of credit against adjudged 

confinement. 

Although we find the government’s plain-language argument compelling, 

we are bound by precedent that functionally obviates the language “as a 

result of” from the rule. In United States v. McCants, defense counsel 

requested a copy of the IRO’s pretrial review memorandum, and the IRO did 

not respond.23 At trial, defense counsel requested day-for-day confinement 

credit based on, among other errors, the IRO’s failure to provide the 

memorandum. The military judge declined, deferring to the convening 

authority the responsibility for determining the proper credit. On appeal, the 

Court of Military Appeals analysis was brief: the government failed to 

provide the memorandum, and the appellant was entitled to one day of credit 

 

21 Appellant’s Brief of 4 Oct 2016 at 12.

22 Id. (quoting record at 417) (alterations in the original).

23 39 M.J. 91, 93 (C.M.A. 1994)
United States v. Harris, No. 201600207

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for each day of noncompliance. Whether the appellant in McCants served any 

time confined as a result of the noncompliance, as would seem to be required 

by the plain language of the rule, was not mentioned as a consideration.24

Although McCants did not expressly consider whether the failure to 

provide the memorandum resulted in the appellant’s confinement, neither 

did it expressly eliminate causality as a requirement for credit. If this were 

the extent of the case law on the matter, we might pause before deciding that 

the McCants holding represents such a substantial departure from the text of 

the rule. But this reading of McCants—and R.C.M. 305(k)—has taken root.

In United States v. Plowman,

25 we held that violations of separate

provisions of R.C.M. 305 did not result in additional days of credit for each 

provision that the government violated. On the way to that holding, we 

specifically found that “[i]n the context of R.C.M. 305(k), we construe the 

phrase ‘as a result of such noncompliance’ to require additional 

administrative credit from the date when a required event should have 

occurred under R.C.M. 305 until the date the required event does occur.”26

A year later, in United States v. Moore,

27 we interpreted McCants (and

Plowman) to require day-for-day credit from the date when an event required 

by R.C.M. 305 should have occurred until the date the event did occur. We 

construed “as a result of such noncompliance” not to require prejudice in the 

form of confinement that would not have been served but for the error. 

Absent higher authority to the contrary, we will continue to follow this 

precedent and not require the appellant to show a causal link between the 

government’s violation of R.C.M. 305 and his continued pretrial confinement.

But even though we continue to adhere to the general rule that an 

accused is entitled to day-for-day credit when R.C.M. 305 is violated, we do 

not find that the military judge abused his discretion in this case. The 

government was required to produce the IRO’s memorandum upon the 

appellant’s request. The text of R.C.M. 305, however, does not tell military 

judges precisely when the government’s production of the IRO’s 

memorandum is so dilatory as to violate the rule. By claiming 126 days of 

credit encompassing 15 September 2015 to 18 January 2016, the appellant 

seems to be of the view that the government began violating R.C.M. 305 from 

the moment he made the request. We disagree.

 

24 Id. at 94.

25 53 M.J. 511 (N-M. Ct. Crim. App. 2000).

26 Id. at 513.

27 55 M.J. 772, 788 (N-M. Ct. Crim. App. 2001).
United States v. Harris, No. 201600207

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Here, the appellant’s request occurred after the military judge had 

assumed control of the case. The military judge is charged with exercising 

reasonable control over the proceedings to promote the purposes of the Rules 

for Courts-Martial.28 To that end, the military judge issued a case 

management order that determined when the parties were to comply with 

their various obligations as the case moved toward trial. He and the parties 

also agreed to a deadline by which the parties were to submit motions for 

appropriate relief. Consistent with his role in ensuring a fair and orderly 

proceeding, the military judge’s order urged counsel to “strive to litigate all 

ripe motions at the first motions date[.]”

29 Although the order was not 

formally signed by the judge until the day of the motions hearing, the record 

of trial makes plain that the parties understood that the military judge 

expected to litigate motions on 29 October. 

The military judge expressed his reasoning at the time he gave his ruling. 

He recognized that neither party approached the issue with clean hands. He 

found that the appellant’s counsel should have made the missing enclosure 

the subject of a motion at the 29 October Article 39(a) session. The military 

judge declined to call defense counsel’s decision to accrue credit rather than 

compel compliance “gamesmanship,” settling instead on “smart litigating.”30

But ultimately the military judge sensed that the appellant was using R.C.M. 

305 as a sword rather than a shield, and that to permit the defense to prefer 

the remedy to actual compliance would be to grant an unwarranted 

“windfall.”31 The military judge granted 23 days of credit, representing dayfor-day credit for the violation starting on the day the government delivered 

the incomplete IRO memorandum (7 October) and lasting through the date 

the appellant should have moved for production (29 October).

We find that this approach was not an abuse of the military judge’s 

discretion. We have previously held that “[g]enerally, the doctrine of laches 

bars a claim if there is unreasonable delay and the government is 

prejudiced.”32 Without using the term, the military judge applied the doctrine

of laches to, in the words of R.C.M. 102, “secure simplicity in procedure, [and] 

fairness in administration” of the court-martial. We disagree with the 

appellant’s contention that the military judge’s ruling created a requirement 

that the accused make “repeated requests” for matters under R.C.M. 305. The 

 

28 R.C.M. 801(a)(3).

29 AE I at 2, n.v.

30 Record at 420.

31 Id.

32 Johnson v. United States, 49 M.J. 569, 573-74 (N-M. Ct. Crim. App. 1998).
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military judge was well-within his authority to expect the parties to litigate 

this motion on 29 October. We find that the military judge’s ruling was an 

appropriate exercise of his responsibility to reasonably control the 

proceedings and to promote the purposes of the Rules for Courts-Martial.

33

Rather than comply with the agreed upon portions of the draft case 

management order and the military judge’s stated expectations, defense 

counsel let the matter go unnoticed by the court until the days of potential 

credit had been maximized. While this approach may have represented 

“smart litigating,” we find that the military judge did not abuse his discretion 

by declining to reward the appellant with the windfall. 

III. CONCLUSION

The findings and sentence are affirmed.

Chief Judge GLASER-ALLEN and Senior Judge MARKS concur.

For the Court

R. H. TROIDL

Clerk of Court 

 

33 See R.C.M. 801.