## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant M ICHAEL E. HARRIS United States Army, Appellant

ARMY 20170100

Headquarters, United States Army Garrison, Fort Meade
Daniel G. Brookhar t, Military Judge Lieutenant Colonel Tyesha L. Smith, Staff Judge Advocate

For Appellant: Major Brendan R . Cronin, JA; Captain Meghan E. Mahaney, JA (on brief); Captain Patrick G. Hoffm an, JA; Captain M eghan E. Mahan ey, JA (on reply brief).

For Appellee: Colonel Tania M. M artin, JA; Major Cormac M. Smi th, JA; Major Meghan Peters, JA (on brief).

13 July 2018

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OPINION OF THE COURT

---------------------------------- FEBBO, Judge:

This case is before us for re view pursuant to A rticle 66, Unif orm Code of Military Justice, 1 0 U.S.C. 866 [UCMJ]. 1 Appellant asserts the military judge erred

1 A military judge sitti ng as a general court -martial convicted appellant, pu rsuant to his pleas, of one specificatio n of desertion, in violation of A rticle 85, UCMJ and three specifica tions of possess ing child pornog raphy in violati on of Article 134, UCMJ. The military judge sentence d appellant to a bad-conduct discharge, confinement for five years, and reduction to the grade of E-1. The military judge granted appellan t 191 days of confinemen t credit. The convenin g authority approved the adjudged sentence.HARRIS—ARMY 20170100

2 in denying appellant’s r equest for 291 days of Allen 2 credit arising from his confinement by the state of Florida.

The military judge fo und the appellan t was confined by the stat e of Florida, pending his charges th ere, because of his o ffense of failure to appear in Florida court. Appellant c ontends the mili tary judge’s finding, as to the reason for appellant’s pretrial confinement , was clearly erroneous. We de termine the military judge’s finding was not clearly erroneous. As such, and in lig ht of the controlling Department of Defense Instructi on, the military judge did not e rr when he denied appellant’s request for 291 addition al days of Allen credit.

BACKGROUND

In 2013, as part of a n internet pornography investigation, the Florida Department of Law Enforcement executed a search warrant of appe llant’s home. Appellant was arreste d by the state of Flor ida, which charged h im with forty-four counts of possessing child pornography. 3 Appellant was free on bond awaiting his
trial for these offenses.

In January 2014, appellant fled to Cambodia. Appellant failed to appear for a pretrial hearing in the Florid a criminal court and his bond was forfeited.

Appellant intended to remain away permanen tly. Using skills le arned as a Military Poli ce officer and military do g handler, he obtained a job as a dog trainer in
Cambodia. After an ar ticle about him was published in an Engli sh-language newspaper and a reward was offered for his capture, appellant s urrendered to
Cambodian authorities.

After spending a week in a Cam bodian jail, appellant was escort ed by U.S.
Marshalls from Cambodia and returned t o military control in Jap an on 5 November
2014. The U.S. Marshalls and a C ID agent brought appellant bac k to Flori da. On 6 November 2014, since hi s bond had been forfe ited, he was placed in civilian
confinement. The mil itary did not request the state of Florida to confine ap pellant. The appellant was charged with failure of a defen dant on bail t o appear, a felony
under Florida law . Fla. Stat. § 8 43.15(a) (2018).

2 This term refers to day-for-day credit toward appellant’s sent ence for lawful pretrial confinement. See United States v. Allen , 17 M.J. 126 (C .M.A. 1984).

3 If convicted of the 44 counts under Florid a law, at 5 years co nfinement per count, appellant would h ave been subject to up to 220 years confinemen t. See Fla. Stat. §§ 827.071(5)(a), 775.082(3)(e).HARRIS—ARMY 20170100

3 Appellant remained in c ivilian pre-trial confinement for approx imately 22 months. On 22 August 2016, the F lorida state’s attorney agreed to nolle prosequi , or “not pursue” the chil d pornography char ges due to an inability to secure a key witness. Appellant ag reed not to contest t he remaining failure to appear charge—
and therefore entered a nolo contendre plea—in exchange f or a sentence recommendation from the prosecutor for 364 days in jail with cr edit for time served.

After appellant’s conv iction, he was detaine d in Florida, until he was transported back to hi s unit at Fort Mea de on 31 August 2016. Appellant was placed
under restriction. O n 4 October 2016, appe llant was charged wi th desertion and possession of child por nography and ordered into pretrial confi nement.

On 22 February 2017 , appellant pleaded guilt y to all charges. The military judge awarded appellant 191 da ys of confinement credit. 4 Appellant requested an additional 291 days credit for th e period of time appellant spe nt in pretrial
confinement in Florida that was in excess of his 364 day senten ce for the failure to appear charge. 5 Based on Department of Def ense Instruction 1325.07,
Administration of Milit ary Correction al Facilities a nd Clemency and Parole Authority [DoDI 1325 .07], (11 Mar. 2013), t he military judge de nied appellant’s request for the add itional 291 days of pre trial confinement by the state of Florida because the military judge found appellant was co nfined by the state of Florida
because of his failure to appear.

4 The military judge awarded 8 da ys credit for th e time appellan t was held in a Cambodian jail and transported b ack to Florida, 9 days credit f or the time appellant was held by the state o f Florida for the military after his civ ilian plea of no contest, 33 days credit for res trictions tantamount t o confinement while at his Fort Meade unit, and 141 days for the time appellant s pent in mi litary pre trial confinement.

5 At trial, one of appellant’s a rguments was that he should rec eive sentence credit
the same as if h e were in the Federal ci vilian system. Even if there is a superficial appeal to that argument, “[s]entencing procedures in Federal ci vilian courts can be followed in courts-martial only t o a limited degree.” Rule for Courts-Martial 1001 analysis at A21-71. Federal sentencing in cludes more mandatory minimum sentences, sentencin g guidelines, and much different pre-senten cing procedures than
used at courts-martial. Further , in the civilian Federal syste m, judges do not award
sentence credit at trial. The B ureau of Prisons c alculates app ropriate sentence credit
later. See United States v. Wilson , 503 U.S. 329, 33 3-35 (1992).HARRIS—ARMY 20170100

4 LAW AND DISCUSSION

We review the questi on of whether the appe llant was entitled to pretrial
confinement credit de novo

. United States v. Smith , 56 M.J. 290, 2 92 (C.A.A.F. 2002). Unless they are clearly e rroneous, we def er to a milita ry judge’s findings of
fact but review the mi litary judge’s application of those facts to the law de novo

. United States v. Harris , 66 M.J. 166, 1 68 (C.A.A.F. 2008).

In addressing appellant’s assi gned error, we must answer two q uestions. First, is ap pellant entitled to Allen credit as a matte r of law. Second, if not entitled

to Allen credit, should this court provide appellant with relief under our Article 66(c) review.

Appellant argues that Allen requires day-for-day credit for 291 additional days
of civilian confinemen t in Florida as a ma tter of law. We disa gree.

The Current Law

In conducting our de novo review of the law , this court finds p ersuasive the analysis and hold ing of a Navy-Marine Cor ps Court of Criminal A ppeals (NMCCA) case addressing this issue. In United States v. Atkinson , the NMCCA held that Allen was inapplicable because DoDI 1325.07, “ does not require (or ev en allow) credit for pretrial confinement at non-military fac ilities for unrelated o ffenses.” 74 M.J. 645, 648 (N-M. Ct. Crim. App. 2015), rev. denied , 75 M.J. 20 (C.A .A.F. 2015).

Prior to our superior court’s decision in Allen , “a military ac cused who had served a period of pret rial confinement was not entitled to adm inistrative credit against his adjudged confinement.” United States v. DeLeon , 53 M.J. 658, 659 (Army Ct. Crim. App. 2000). In Allen , our superior court int erpreted Department of Defense Instruction 1325.4, Trea tment of Military Prisoners and Administration of Military Correct ion Facilities [DoDI 1325.4], (7 O ct. 1968), 6 “as voluntarily incorporating the pre-sentence c redit” procedures employed by t he Department of Justice (DOJ) for sentence computation. Allen , 17 M.J. at 128. A s a resu lt, the
Allen court held that these Federal procedures 7 applied to cou rts-martials. Id . “This

6 DoDI 1325.4, stated “ procedures employed i n the com putation of sentences will be in conformity with thos e published by the [ DOJ], which govern t he computation of
sentences of Federal prisoners and militar y prisoners under the jurisdiction of the [DOJ].” DoDI 1325.4, p. 22.

7 The relevant part of these Fed eral procedures, now found in 18 U.S.C. § 3585, require a defendant be given confinement credit, “as a result o f any other charge for

(continued . . .)HARRIS—ARMY 20170100

5 reading of DoDI 1325.4 is the sole basis fo r what tri al practit ioners for t he past 30 years have called ‘ Allen credit.’” Atkinson , 74 M.J. at 647.

As discussed in Atkinson , the DoD instructions have changed dramatically
since Allen . DoDI 1325.4 is no longer in effect, and h as been replaced by DoDI 1325.07. We agr ee with the Atkinson court’s analysis of the current status of DoD policy on this issue, and find we must apply the current DoDI t o compute sentencing credit, not the DoDI that existed when Allen was decided.

Plain Language

We begin our interpretation of D oDI 1325.07 where all such inte rpretation must begin—with the plain languag e of the text. See e.g. United States v. Ron Pair Enterprises, Inc. , 489 U.S. 235, 241 (1989).

DoDI 1325.07 does not co ntain the reference to following DOJ pr ocedures formerly found in DoDI 1325.4. Instead , the curren t instructio n requires that “[s]entence computation shall be calculated [in accordance with ] DoD 1325.7-M.” DoDI 1325.07, para. 3.a. DoD 1325.7-M , DoD Sentence Computatio n Manual [DoD 1325.7-M], (27 Jul. 2004), requires that p risoners re ceive “all sentence credit directed by the milita ry judge,” and that military judges “will direct credit for each day spent in pretrial confinement . . . for crimes for which th e prisoner was later
convicted

. ” DoD 1325.7-M, pa ra. C2.4.2.

Critically, however, Do DI 1325.07 states:

Notwithstanding any othe r provision of this instruction or [DoD 1325.7-M] , if a prisoner (accu sed) is confined in a non-military facilit y for a charge or offense for whic h the prisoner ha d been arreste d after
the commission of the offense for which the milita ry sentence w as imposed, the prisoner ( accused) shall recei ve no credit for suc h time
confined in the non-m ilitary facility when ca lculating his or h er sentence adjudged at court-martial.

DoDI 1325.07, para. 3.c (emphasis added).

As such, notwithstanding DoD 1325 .7-M, which might otherwise gr ant credit, the appellant is entitled to no credit for his time spent in Fl orida pretrial

(. . . continued) which the defendant was arrested after the commission of the offense for which the sentence was imposed ; that has not been credited against another sentence.” (emphasis added).HARRIS—ARMY 20170100

6 confinement if he was in such pretrial confinement “for a charg e or offense for which [appellant] had been arrested after the commission of the offense for which the military sentence was imposed . . . .” The crucial questio n is: what does the DoDI mean by “confined . . . for a charge,” and specifically, w hat does the word
“for” mean in this context?

When a term is not otherwise de fined, courts will accord that t erm its ordinary meaning. United States v. Hendrix , (C.A.A.F. __M.J. __, sli p op. at 5 (C.A.A.F. 19 Jun. 2018). The word “for” has different meanings in different contexts. In the context at issue, we find the c orrect meaning of “ for” is close st to “because of” or
“on account of.” Webster’s Thir d New International Dictionary 886 (1981).

DoDI 1325.07, para. 3.c therefore prohibits awarding credit for time spent in pretrial confinement “in a non-military f acility [because of] a charge or offense for which the prison er had been arrested af ter the commission of th e offense for which the military sentence was imposed . . . .”

Application of the Law to the Facts

Considering the p lain language of DoDI 1325.07, the military ju dge’s finding of fact that appellant w as confined in Florida because of his offense of failure to appear resolves the i ssue raised on appeal unless the military judge’s finding is clearly erroneous.

The clearly erroneous s tandard of review is a heavy burden for an appellant to
overcome. Even if th is court disag rees with the m ilitary judge ’s characterization of the facts, we will not decide a military judge’s factual findin gs are clearly erroneous
unless the re cord affords no o ther reasonable conclusion. “At least one court has defined the clearly-e rroneous standard by stating that it must be ‘more than just maybe or probably wr ong; it must . . . str ike us as wrong with the force of a fiveweek-old, unrefrige rated dead fish.’” United States v. French , 38 M.J. 420, 425 (C.M.A. 1993 ) (quoting Parts and Electric Motors In c. v. Sterling Electric, Inc. , 866 F.2d 228, 233 (7t h Cir. 1988)).

In this case, appellant was pen ding charges for child pornogra phy when he was placed in civilian confineme nt in Florida. The Florida chi ld pornography charges were not resolved until a ppellant’s guilt y plea for fai lure to appear. While these facts weigh in appellant’s favor, they are not conclusive of the question of whether the appellant was actually in confinement because of the offense of failing to appear. The military judge ac curately observed appellant wa s not confined by the
state of Florida when he was f acing only the chi ld pornography charges. The state
of Florida did not conf ine appellant until a fter he fled to Cam bodia and failed to appear to face the Florida child pornography char ges. Appellan t was charged and placed in pre-trial confinement f or the offense of fleeing Flor ida’s criminal process.HARRIS—ARMY 20170100

7 The state of Florida was not acting on beh alf of the Army and h e was not being held in confinement at the request of the Army. The fact appellant’ s confinement by the
state of Florida excee ded his eventual sentence for the crime o f failure to appear does not obligate the Fe deral government to lessen the appellan t’s punishment for different offenses against the Federal sovereign.

Under these circumstances, we can not say that the military judg e’s finding that the appellant was i n pretrial confinement because of failing to appear was clearly erroneous. 8

Once it is settled that appellan t was confined by the state of Florida because of failing to appear, the result required by DoDI 1325.07 para. 3.c is clear: the appellant was confined in a non-military facility because of an offense for which he
was arrested after t he commission of the of fense for which the military sentence was imposed. Therefore, notwithsta nding any credit a ppellant might have otherwise been
entitled to under DoD 1325.7-M, appellant is not entitled to cr edit for the time he spent in Florida confinement pe nding trial for his failure to a ppear.

Article 66(c)

In exercising our Article 66(c) review of the f indings and sen tence approved by the convening authority, we do not awa rd appellant any addit ional confinement
credit. To the extent that the m ilitary judge’s ruling may app ear harsh for not granting credit for ap pellant’s confinemen t in Florida, we note that prior to sentencing appellant , the military judge st ated on th e record t hat he full y considered, as a mitigating factor, the le ngthy perio d of time appellant sp ent in Flori da pretrial
confinement.

8 Under the plain langu age of DoDI 1325.07, p ara. 3.c, it does n ot matter whether appellant was also in civilian pretrial confinement because of the pending Florida child pornography charges. Paragraph 3.c clearly states the re striction contained therein applies notwithstandin g any provision of DoD 1325.7-M, that may otherwise provide for credit.HARRIS—ARMY 20170100

8 CONCLUSION

Upon consideration of the entire record, the find ings of guilty and sentence
are AFFIRMED.

Senior Judge MULLIGAN an d Judge WOLFE concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: