Corrected Opinion Released on 24 October 2014

UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

STACY A. WHALEN

LANCE CORPORAL (E-3), U.S. MARINE CORPS

NMCCA 201400020

GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2013.

Military Judge: LtCol David M. Jones, USMC.

Convening Authority: Commanding General, 2d MAW, II 

Expeditionary Force, Cherry Point, NC.

Staff Judge Advocate's Recommendation: Col J.J. Murphy III, 

USMC.

For Appellant: CDR Suzanne M. Lachelier, JAGC, USN.

For Appellee: Maj Suzanne M. Dempsey, USMC; Maj David 

Roberts, USMC.

21 October 2014

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OPINION OF THE COURT 

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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.

 

PER CURIAM: 

A military judge, sitting as a general court-martial, 

convicted the appellant, consistent with her pleas, of two 

specifications of conspiracy, one specification of sexual abuse 

of a child, and one specification each of production and 

distribution of child pornography in violation of Articles 81, 
2

120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 

881, 920b, and 934. The military judge sentenced the appellant 

to reduction to pay grade E-1, forfeiture of all pay and 

allowances, confinement for four years, and a dishonorable 

discharge. The convening authority (CA) approved the adjudged 

sentence and, except for the punitive discharge, ordered it 

executed. 

The appellant raises two assignments of error (AOE). Both 

of the appellant’s AOEs essentially argue that the military 

judge abused his discretion by not awarding enough confinement 

credit based on the nature and conditions of her pretrial 

confinement. First, the appellant argues that additional 

confinement credit is warranted because her right to equal 

protection was violated when she served pretrial confinement at 

a civilian jail rather than at a military brig based upon her 

gender. Second, she argues that the additional confinement 

credit awarded by the military judge under Article 13, UCMJ and 

RULE FOR COURTS-MARTIAL 305(k), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2012 ed.) was insufficient in light of the pretrial confinement 

conditions she suffered. We disagree.

After careful consideration of the record of trial, the 

parties’ pleadings, and the appellant’s assignments of error, 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 was committed. Arts. 59(a) 

and 66(c), UCMJ. 

Background

The appellant, a female Marine, was placed in pretrial 

confinement after being charged with offenses stemming from the 

production and distribution of child pornography. Since the 

closest military confinement facility (“brig”) could not house 

female detainees, the appellant served 114 days of pretrial 

confinement at the Craven County, North Carolina, Jail (“Craven 

County Jail”). The Craven County Jail housed female detainees 

on behalf of the Marine Corps in accordance with a memorandum of 

agreement (MOA) between the Commandant of the Marine Corps and 

the Sheriff for Craven County.1 In the Navy and Marine Corps, 

female detainees and prisoners may be held in a civilian 

facility only if the confinement criteria directed by the Navy 

 

1 On 9 April 2013, the Commandant of the Marine Corps and the Sheriff for 

Craven County entered into an MOA to provide for pretrial and post-trial 

confinement support of male and female detainees/prisoners. 
3

Corrections Manual (Manual) are met. Secretary of the Navy 

Instruction 1640.9C at ¶ 7103.2.c(4) (03 Jan 2006). However, 

the MOA did not reference any military regulations governing the 

treatment of military pretrial detainees, and the appellant’s 

confinement at the Craven County Jail violated several 

provisions of the Manual.2 

Prior to entering pleas, the appellant’s trial defense 

counsel filed a motion for pretrial confinement credit due to 

illegal pretrial punishment under Article 13, UCMJ and R.C.M.

305(k). Appellate Exhibit II; Record at 144-65. The defense 

counsel argued that the appellant’s pretrial confinement 

conditions at the Craven County Jail were “markedly different” 

than those of male Marines serving pretrial confinement in the 

brig. Record at 160. The defense requested two days’ credit 

for every one day the appellant was confined at the Craven 

County Jail. 

The military judge concluded that, although the Government 

did not intend to punish the appellant by holding her at the 

Craven County Jail, she did, however, suffer more onerous 

pretrial confinement conditions than her male counterparts, “due 

exclusively to her gender.” AE VII at 3. Thus, the military 

judge granted partial relief by ordering that 57 days credit be 

applied against confinement, in addition to 114 days of day-forday Allen credit. Id.; Record at 167.

The military judge found that the appellant had been

“subjected to harsher conditions [in the Craven County Jail] 

than she would have had to endure in a military facility.” AE 

VII at 1. Specifically, he cited that the appellant: 1) had 

been housed with post-trial confinees; 2) was housed in a 

facility that did not separate violent and nonviolent offenders; 

3) was required to wear the same uniform as post-trial 

 

2 For example, the Manual requires segregation between detainee/pretrial and 

post-trial personnel if multiple occupancy cells are used. SECNAVINST 

1640.9C at ¶ 12502.3.b; see also United States v. Adcock, 65 M.J. 18, 24-25

(C.A.A.F. 2007) (recognizing that commingling of pretrial and post-trial 

inmates is regularly treated as pretrial punishment). Applicable prisoner 

rights under the Manual include freedom from discrimination on the basis of 

sex, access to counsel, protection (i.e. not being housed with violent 

offenders), and due process for disciplinary actions. SECNAVINST 1640.9C at 

¶ 5101.3.i. Further, “[u]nder no condition will any prisoner be prevented 

from consulting or corresponding with counsel[.]” Id. at ¶ 8301.2.c. Every 

confinement facility must have the following “core programs”: “PT; 

recreation; individual counseling; group counseling; work; incentive; life 

skills; and religious.” Id. at ¶ 6103.1.a. 
4

prisoners; 4) incurred extra expense3 and restrictions for 

personal phone calls to her family and attorney; 5) was not 

assigned a brig counselor; 6) was provided food of low quality; 

7) was confined in her cell for approximately 17-20.5 hours a 

day; and, 8) had no access to gym facilities. Id. At 1-2. 

In contrast, male pretrial detainees confined at the brig: 

1) were separated from post-trial prisoners; 2) were confined 

for approximately ten hours a day and had access to a 

recreational area for at least one to two hours a day; 3) had 

less restrictions in place to consult with their attorney; 4) 

were permitted to place outside calls to family for less 

expense; 5) were assigned brig counselors and provided progress 

reports; and 6) were fed higher quality food. 

While in pretrial confinement the appellant received weekly 

command visits, attended all scheduled medical appointments, and

met with her defense counsel. The appellant never requested 

reconsideration of her pretrial confinement, nor provided 

information of her confinement conditions to the reviewing 

officer or the military judge4 until her trial defense counsel

raised the pretrial punishment motion at trial. 

 

Discussion

Since both AOEs essentially argue that the military judge’s 

remedy for the appellant’s “onerous” pretrial confinement 

conditions was inadequate, and are based upon issues already 

ruled on by the military judge at trial, we analyze them 

together.5

This court defers to the military judge’s findings of fact 

unless those findings are clearly erroneous. United States v. 

King, 61 M.J. 225, 227 (C.A.A.F. 2005). We review the military 

 

3 Calls from the Craven County Jail cost between $12 and $13 per call, as 

opposed to $.40 per minute for Marines confined at a brig.

4 R.C.M. 305(2)(i)(E)requires that the decision to confine a prisoner be 

reconsidered when presented with “significant information not previously 

considered” by the Initial Review Officer. R.C.M. 305(j) requires that once 

charges are referred, the military judge shall review the propriety of 

pretrial confinement upon motion for appropriate relief. 

5 Although none of the parties at trial specifically used the term “equal 

protection violation,” it is clear from the record that the appellant’s 

motion sought relief based on constitutional grounds, as well as 

administrative grounds. 
5

judge’s application of those facts to the constitutional and 

statutory considerations de novo. Id. 

Pretrial confinement in a civilian jail is subject to the 

same scrutiny as confinement in a military detention facility. 

United States v. James, 28 M.J. 214, 215 (C.M.A. 1989). Article 

13, UCMJ, prohibits: (1) the imposition of punishment prior to 

trial and (2) conditions of arrest or pretrial confinement that 

are more rigorous than necessary to ensure the accused’s 

presence at trial. King, 61 M.J. at 227. The second 

prohibition “prevents imposing unduly rigorous circumstances 

during pretrial detention.” Id. “Conditions that are 

sufficiently egregious may give rise to a permissive inference 

that an accused is being punished, or the conditions may be so 

excessive as to constitute punishment.” Id. at 227-28 (citing 

United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997); 

James, 28 M.J. at 216). 

R.C.M. 305(f) requires prisoners to be “afforded facilities 

and treatment under regulations of the Secretary concerned.” 

Id. “‘Where the rights of individuals are affected, it is 

incumbent upon agencies to follow their own procedures. This is 

so even where the internal procedures are possibly more rigorous 

than otherwise would be required.’” United States v. McGraner, 

13 M.J. 408, 416 (C.M.A. 1982) (quoting Morton v. Ruiz, 415 U.S. 

199, 235 (1974)); see also United States v. Adcock, 65 M.J. 18, 

23 (C.A.A.F. 2007) (holding Government violation of regulations 

consistent with treatment of pretrial prisoners as innocent 

amounted to an abuse of discretion under R.C.M. 305(k)).

Confinement in violation of service regulations does not 

create a per se right to sentencing credit under the UCMJ. 

United States v. Williams, 68 M.J. 252, 253 (C.A.A.F. 2010).

However, under R.C.M. 305(k), a service member may identify 

violations of applicable service regulations by pretrial 

confinement authorities, and on that basis request confinement 

credit. Id. R.C.M. 305(k) allows for credit for pretrial 

confinement that involves an “abuse of discretion or unusually 

harsh circumstances.” 

This court has previously found that a post-trial female 

prisoner was denied equal protection of the law when, solely by 

reason of her gender, she was housed in a civilian confinement 

facility which lacked rehabilitation programs. United States v. 

Houston, 12 M.J. 907, 915 (N.M.C.M.R. 1982) (finding no

prejudice however because the appellant successfully completed 

her probationary period, entitling her to a suspended bad-
6

conduct discharge, despite not having a rehabilitation program). 

Likewise, the appellant in this case faced disparate conditions 

as compared to her male counterparts serving pretrial 

confinement in the brig, and we agree with the military judge 

that she was subjected to harsher conditions of pretrial 

confinement because the brig was unable to house female Marines 

due to limited resources and bed space. Beyond this explanation,

the Government could not further articulate a valid governmental 

reason for this disparity. The “courts have not been impressed 

with the argument that the unequal treatment is justified due to 

economic considerations,” Houston, 12 M.J. at 913, 915, and 

neither are we under the circumstances.6 

Those seeking to classify individuals on the basis of their 

gender carry the burden of showing an “exceedingly persuasive 

justification” for the classification. Miss. Univ. for Women v. 

Hogan, 458 U.S. 718, 724 (1982) (citing Kirchberg v. Feenstra, 

450 U.S. 455, 461 (1981); Pers. Adm’r of Mass. v. Feeney, 442 

U.S. 256, 273 (1979)). In the prison context, the burden is met 

by showing that the disparity in prison conditions serves 

“‘important governmental objectives and that the discriminatory 

means employed’ are ‘substantially related to the achievement of 

those objectives.’” Id. (quoting Wengler v. Druggists Mut. Ins. 

Co., 446 U.S. 142, 150 (1980)); see also Houston, 12 M.J. 915.

After conducting our own de novo review of the facts of 

this case, we concur with the military judge that the 

appellant’s gender subjected her to more onerous pretrial 

conditions in the Craven County Jail as compared to her male 

counterparts serving pretrial confinement in the brig. We also 

concur with the military judge that the confinement conditions 

were neither the result of pretrial punishment nor the result of 

any knowing violation of the applicable service regulations. 

 

6 See Rhodes v. Chapman, 452 U.S. 337, 359 (1981) (Brennan, J., concurring) 

(noting that “courts are in the strongest position to insist that 

unconstitutional conditions [at prisons] be remedied, even at significant 

financial cost”); Gates v. Collier, 501 F.2d 1291, 1319-20 (5th Cir. 1974) 

(holding fund shortage is not a justification when prison program operates 

under unconstitutional conditions and practices); Jackson v. Bishop, 404 F.2d 

571, 580 (8th Cir. 1968) (finding “[h]umane considerations and constitutional 

requirements [in the prison context] are not, in this day, to be measured or 

limited by dollar considerations”); Glover v. Johnson, 478 F. Supp. 1075, 

1078 (E.D. Mich. 1979), aff’d sub nom. Cornish v. Johnson, 774 F.2d 1161 (6th 

Cir. 1985) (holding equal protection violation when female prisoners were 

denied rehabilitation programs that were offered to male prisoners and 

finding that economic “considerations alone cannot justify official inaction 

or legislative unwillingness to operate a prison system in a constitutional 

manner”). 
7

Adequacy of Remedy

The sufficiency of a military judge’s relief is reviewed 

for an abuse of discretion. Williams, 68 M.J. at, 257. Here, 

we find that the military judge’s remedy ordering that 57 days 

credit be applied against confinement, in addition to 114 days 

of day to day Allen credit was adequate and does not amount to 

an abuse of discretion under the circumstances of this case.7

Accordingly, we decline to grant the appellant additional 

relief.

Conclusion

Accordingly, the findings and the sentence, as approved by 

the CA, are affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

7 This case does not rise to the level of unlawful punishment faced in United 

States v. West, No. 201200189, 2013 CCA LEXIS 230 at *25-30, unpublished op. 

(N.M.Ct.Crim.App. 21 Mar 2013), where we affirmed a sentence of “no 

punishment” because the appellant faced pretrial punishment through her 

confinement at the County Jail and at a duty hut, and where her command 

overreached by using her confinement to bargain with and threaten her, or 

King, 61 M.J. at 228, where the appellant was given three days of confinement 

credit for each day he spent in solitary segregation without explanation.