Petition for Writ of Certiorari — Seawell v. United States (No. 08-588)

\\P | Suprome Court, U.S.

FILED

D 08-58 8 Nov 3-208

n° OFFICE OF THE CLERK

Witlam K. Suter, Cierk

In the Supreme Court of the United States

CADET DONCOSTA E. SEAWELL,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Jennifer J. Raab Shannon A. Bennett

Captain, U.S. Air Force Major, U.S. Air Force

Counsel of Record

Air Force Appellate

Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20032

(202) 767-1562

i

QUESTION PRESENTED

Does a mandatory supervised release program

violate the Fifth and Eighth Amendments, where

the program allows the Government to revoke

earned credit against an adjudged sentence

without due process thereby resulting in an

increase in punishment?

il

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................cceeseeeees 1

STATEMENT OF THE CASE. ....000000. eee 2

REASONS FOR GRANTING THE WRIT......... 6

I. The United States Court of Appeals for

the Armed Forces’ decision conflicts with

other federal courts of appeal. ...................... 7

If. Petitioner was confined longer than

authorized under his approved sentence.... 14

IIE ccirinchsdcccsanéhintdidiemaiddoyacaanenpasialgal 16

IEEE Slevsnnssiicssvenesssiesaniocnunbedicontnennnstiniabnian la

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TABLE OF AUTHORITIES

Constitutional Provisions

CEE, MI Wicca ccccvccceccescsssosss 1,14,17

U.S. CONST. amend. VIILI..........cccccccccee 2,16,17

Supreme Court of the United States Cases

Estelle v. Gamble, 429 U.S. 97 (1976) ............ 16

Haines v. Kerner, 404 U.S. 519 (1972)............. 9

Morrissey v. Brewer, 408 U.S. 478 (1972) ...... 8,9

Screws v. United States, 325 U.S. 91 (1945) ..... fe)

Wilwording v. Swenson, 404 U.S. 539 (1974).....9

Wolff v. McDonnell, 418 U.S. 539 (1974).............

SduRieeddd Gdatsbesanaginbieneuevesevenceesenendee 9,10,11,13,14

United States Court of Appeals Cases

United States v. Pena,

RE | a re 15

Courts of Criminal Appeals

United States v. Hilt, 18 M.J. 604 (A.F.C.M.R.

TT ctniniinatdt einathiesersahbaubabadaviebiateescecse 16

United States v. Mansfield, 33 M.J. 972

I a eemeusie 16

United States v. Weber, 56 M.J. 736 (C.G.

IE, ES I i divccndcctabinveucarenscusenvncs 16

¥

;

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Federal Circuit Courts

Block v. Potter, 631 F.2d 233 (3d Cir. 1980) ...... 11

United States v. Copley, 978 F.2d 829 (4th Cir.

MIs so wu inci usar deeicheaiinaaeninpcnmnaidesiaaliegebeesbiimaaial 6,7,8

United States v. Stephenson, 928 F.2d 728 (6th

a Se isivrnhddadansbtibenasinbueiuhuansbeseionceamell 9,10

Federal Statutes

REE EUS Ete Line Ce: 2,15

LTTE 1

4k, EE ee See NT 1

Miscellaneous

Air Force Instruction 31-2085 ..........................- 11,12

Department of Defense Instruction 1325.7 .........

canneigeangnnn spasnibensiaesberenousepensscousneevnceensoanesnnese 7,8,12,14

The Petitioner, Cadet Doncosta E. Seawell,

respectfully prays that a writ of certiorari issue to

review the order and judgment of the United States

Court of Appeals for the Armed Forces entered in

his case on August 5, 2008.

OPINIONS BELOW

The order and judgment of the United States

Court of Appeals for the Armed Forces, United

States v. Seawell, 2008 CAAF Lexis (C.A.A.F. 2008)

is located at Appendix (App.) la. The order and

judgment of the United States Air Force Court of

Criminal Appeals, United States v. Seawell, ACM

35331 (f rev), 2007 CCA Lexis 571, (A.F. Ct. Crim.

App. 2007) is located at App. 2a.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces (C.A.A.F.) was entered

on August 5, 2008. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1259(3) (2000) and 10

U.S.C. § 867a(a) (2000).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment of the United States

Constitution states in relevant part:

No person shall be...deprived of life, liberty, or

property, without due process of law.

2

The Eighth Amendment of the United States

Constitution states:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment

inflicted.

Article 55, Uniform Code of Miuilitary Justice

(UCMJ), Section 855 of Title 10, United States Code

[herinafter Article 55], provides:

Punishment by flogging, or by branding, marking,

or tattooing on the body, or any other cruel or

unusual punishment, may not be adjudged by a

court-martial or inflicted upon any person subject

to this chapter. The use of irons, single or double,

except for the purpose of safe custody, is

prohibited.

STATEMENT OF THE CASE

This case presents the question of whether the

imposition of an additional 35 days of confinement as

a result of mandatory supervised release (MSR)

being revoked increased Petitioner’s sentence in

violation of the Eighth and Fifth Amendment.

On August 12-13, 2002 and October 15-16, 2002,

a military judge tried Petitioner at a general court-

martial at Los Angeles Air Force Base, California for

offenses which occurred after August 16, 2001.

Petitioner entered a plea of guilty pursuant to a pre-

trial agreement to the charge of forcible sodomy.

Petitioner was sentenced to a dismissal, confinement

3

for two years, and forfeiture of all pay and

allowances. The confinement was later reduced to

eighteen months.

The Petitioner entered confinement on October

16, 2002 for a period of eighteen months. After

computation of good-time credit, Petitioner’s

minimum release date was December 29, 2003 and

his maximum release date was April 15, 2004.

After serving several months’ confinement,

Petitioner applied for parole. On June 25, 2003, the

Parole Board denied Petitioner’s request for parole.

Petitioner appealed the parole denial which was

denied on September 8, 2003.

On December 29, 2003, Petitioner was placed in

the MSR program. He was required to comply with

the requirements of the MSR program to include the

following: immediately go to his designated residence,

report in person to the probation officer, remain

within certain prescribed limits, “work diligently at a

lawful occupation,” and receive permission from his

probation officer prior to changing his residence or

place of employment. Among other “standard”

conditions, Petitioner was required to “promptly and

truthfully answer all inquiries” from the Air Force, his

commander, or other officials. He was required not to

associate with “persons of a bad or questionable

reputation” or frequent certain locations. The

standard MSR conditions also prohibited Petitioner

from possessing firearms, required him to participate

and make progress in a community-based sex offender

treatment program, have no contact with the victim,

4

abstain from the use and possession of pornographic

or sexually stimulating materials, not frequent adult

bookstores, sex shops, topless bars, or other locations

that act as a sexual stimulus and register as a sex

offender.

On February 2, 2004, the Air Force Clemency and

Parole Board (the Board) suspended Petitioner’s

MSR release based on reported violations of the

imposed MSR conditions, contained in the Request

for Warrant letter, dated February 2, 2004. Asa

result of the warrant letter, Petitioner was

apprehended on or about February 2, 2004 and

returned to the Naval Consolidated Brig, Miramar,

CA, pending a formal decision from the Board

regarding his MSR and confinement status. On May

1, 2004, a preliminary interview was conducted and a

summary report was generated stating there was

probable cause to believe the offenses occurred,

again, based on information contained in the Request

for Warrant letter, dated February 2, 2004.

On March 24, 2004, an MSR Hearing was

conducted and a report was generated. Petitioner was

afforded the opportunity to present evidence in his

defense. Notably, the report contained a list of the

alleged violations (2) and the specific conduct

constituting the violations. The conduct identified

appears to be based on the only evidence presented by

the Government: a United States Parole Officer letter

with an internet conversation log from an anonymous

individual from Perverted Justice which was the same

letter which served as a basis for the arrest warrant

and subsequent investigation. The findings of facts

5

are based on this request for warrant letter and the

fact that no solid evidence was presented at the

violation hearing. In each case of alleged violations

the fact that no solid evidence was produced to prove

otherwise was dispositive. Petitioner denied both

allegations and submitted evidence of not having

access to a computer during the time period. No other

witnesses testified and no other evidence was

considered. The hearing summary included the

allegations and how Petitioner responded. There was

no transcript or audio recording of the hearing; only

the MSR Hearing Report consisting of three pages.

On April 15, 2004, the Board formally revoked

Petitioner's MSR release stating that violations had

occurred. Further, the Board determined that his

“street time,” the time that Petitioner was released

from confinement under MSR conditions, would not

be credited toward his eighteen-month sentence to

confinement. Even though the first reported MSR

violation did not occur until January i1, 2004, the

board declared that Petitioner’s entire time under

the MSR program—December 29, 2003 until

February 2, 2004—would not be credited to his

confinement term. Likewise, Petitioner was not

awarded with his prior good time credit while in

confinement.

On April 16, 2004, Petitioner petitioned the Court

of Appeals for the Armed Forces (C.A.A.F.) in the

nature of a writ of habeas corpus, seeking release

from confinement. The court denied the petition on

June 1, 2004. See United States v. Seawell, 60 M.J.

114 (C_A.A.F. 2004). Petitioner was released from

6

confinement 35 days after the original maximum

release date of April 15, 2004.

On November 17, 2005, the Air Force Court of

Criminal Appeals (A.F.C.C.A.) affirmed the findings

and sentence as adjudged. App. lla. On 16

November 2006, the C.A.A.F. granted review on three

issues in Petitioner’s case. On 16 July 2007, the

C.A.A.F. certified an issue and remanded the case to

A.F.C.C.A. App. 7a. On December 28, 2007, the

A.F.C.C.A. affirmed the sentence. App. 2a. On

August 5, 2008, the C.A.A.F. again granted review

and summarily disposed of the case. App. la.

REASONS FOR GRANTING THE WRIT

This Court should grant this petition because

Petitioner was denied procedural due _ process

protections at his MSR revocation hearing that he

would have otherwise enjoyed at a parole revocation

proceeding. The lower court’s ruling in this case

thus creates a split of authority among the federal

circuits. Compare Seawell, 60 M.J. 114 with United

States v. Copley, 978 F.2d 829, 835 (4th Cir. 1992)

(indicating a convicted accused on supervised release

should have the same due process protections before

his release may be revoked as one on probation).

Additionally, this Court should grant this petition

because Petitioner was imprisoned longer than his

approved sentence to confinement in violation of the

Fighth Amendment.

7

I. The United States Court of Appeals for

the Armed Forces’ decision conflicts with

other federal courts of appeal.

Servicemembers may obtain early release from

their approved sentences to confinement in one of

two ways: parole or through the Mandatory

Supervised Release program (MSR). While inmates

apply for parole, they do not for MSR. Rather, a

parole and clemency board orders the inmate into

the program. Joint MSR Policy. Thus, an inmate

can avoid being paroled simply by not applying, but

must enter the MSR under threat of criminal or

administrative sanction. /d., 4] E-5.

When the Government seeks to revoke a

servicemember’s parole, it is required to conduct a

violation hearing to determine whether the parolee

has violated any conditions of parole and whether

parole should be revoked. See Department of

Defense Instruction (DoDI) 1325.7, Administration

of Military Correctional facilities and Clemency and

Parole Authority, 4 6.17.10 (July 17, 2001). App.

15a,16a. The Government is required to provide the

parolee evidence on which a finding of the violation

may be based. Jd. at 4 6.17.10.10. The scope of the

hearing may include examination of the evidence,

relevant questioning of witnesses, pertinent

statements as to the alleged violation and whether

parole should be revoked. /d. at 4 6.17.10.11. The

parolee is permitted to present witnesses and may

cross-examine adverse witnesses. Id. at ¥Y

6.17.10.12. However, a servicemember facing a MSR

8

revocation hearing does not enjoy the full due

process protections of a parole violation hearing.

DoDI 1325.7, 4 6.20.6 states that a violation of

MSR will be considered equivalent to a violation of

the terms of parole and will be processed in

accordance with DoDI 1325.7, § 6.17.10 and 4

6.17.11. See DoDI 1325.7, 4 6.20.7. Paragraph

6.17.10 specifically lists the procedure and scope of a

revocation hearing. App. 16a. If parole is revoked,

paragraph 6.17.11 provides generally that credit

shall be awarded with some delineated exceptions.

App. 21a.

“(T]he due process clause of the fourteenth

amendment imposes. procedural...limits on the

revocation of the conditional liberty created by

probation.” United States v. Copley, 978 F.2d 829,

835 (4th Cir. 1992), quoting Black v. Romano, 471

U.S. 606, 610 (1985) (citing Gagnon v. Scarpelli, 411

U.S. 778, (1973); Morrissey v. Brewer, 408 U.S. 471,

(1972)). The court further held that logic would

extend this protection to revoke supervised release

where the only difference between supervised

release and probation is that the former follows a

prison term and the latter is in lieu of a prison term.

Id. The lower court in this case did not follow this

logic.

A revocation hearing “must be the basis for more

than determining probable cause; it must lead to a

final evaluation of any contested relevant facts and

consideration of whether the facts as determined

warrant revocation.” United States v. Stephenson,

9

928 F.2d 728, 732 (6th Cir. 1991), citing Morrissey v.

Brewer, 408 U.S. 471 (1972). A minimal procedural

requirement includes “a written statement by the

factfinders as to the evidence relied on and reasons

for revoking parole.” Jd.

Where the appellant was on supervised release

and based on allegations from probation officer faced

a revocation hearing to determine whether appellant

violatea conditions, the court held “the record is

scant on proof to support the findings of violations.”

Id. at 731. In Stephenson, there was testimony from

the probation officer, the appellant’s mother and the

appellant and the court concluded, “[blecause of the

lack of reliable evidence establishing Stephenson

had either engaged in criminal conduct or used

alcohol to excess and because the district court made

no written statement explaining the evidence relied

on or the reasons for revoking release, we find the

district court abused its discretion.” Jd. at 733.

Lawful imprisonment necessarily makes

unavailable many rights and privileges of the

ordinary citizen, a “retraction justified by the

considerations underlying our penal system.” Wolff

v. McDonnell, 418 U.S. 539, 555-56 (1974) (quoting

Price v. Johnston, 334 U.S. 266, 285 (1948)).

However, prisoners may claim the protections of the

Due Process Clause. /d. at 556. “They may not be

deprived of life, liberty, or property without due

process of law.” /d. Haines v. Kerner, 404 U.S. 519

(1972); Wilwording v. Swenson, 404 U.S. 249 (1971);

Screws v. United States, 325 U.S. 91 (1945).

10

In Wolff the petitioner challenged practices of

disciplinary proceedings at the Nebraska Penal and

Correctional Complex as being adverse to the Due

Process clause of the Fourteenth Amendment. Part

of the challenged practices occurred in cases of

flagrant or serious misconduct, where the chief

executive officer may order that a person’s reduction

of a person’s good-time credit be forfeited or

withheld. Jd. at 546. Petitioner sought (1)

restoration of good time; (2) submission of a plan by

the prison authorities for a hearing procedure in

connection with withholding and forfeiture of good

time which complied with the requirements of due

process; and (3) damages for the deprivation of civil

rights resulting from the use of the allegedly

unconstitutional procedures. /d. at 553.

As a starting point, this Honorable Court quickly

dismissed the petitioner's assertion that the

procedures for disciplining prison inmates for serious

misconduct was a matter of policy, which raised no

constitutional issue. Jd. at 555. While noting that

the Constitution does not guarantee good time

credit, the Court determined that the State created a

liberty interest embraced by the Fourteenth

Amendment. /d. at 557. The Court held this liberty

interest in good time credit entitled a prisoner to

“minimum procedures appropriate under’ the

circumstances and required by the Due Process

Clause to insure that the state-created right is not

arbitrarily abrogated.” Jd. The Court opined that a

“person's liberty is equally protected, even when the

liberty itself is a statutory creation of the State.” Jd.

at 558.

1l

“The presence of a large measure of discretion in

a parole system...does not alter the fundamental due

process limitation against capricious

decisionmaking...A legislative grant of discretion

does not amount to a license for arbitrary behavior.”

Block v. Potter, 631 F.2d 233 (3d Cir. 1980) (citing

Kent v. United States, 383 U.S. 541, 553 (1966)). In

Block, the appellant’s application for parole was

denied because “a person like Block who had enjoyed

the social advantages of financial security, a college

and post-graduate education, and professional

employment, should be treated more harshly than

the ‘typical...parole applicant.” Jd. at 236. In

determining the issues, the Third Circuit Court of

Appeals explained that “weighing individual

characteristics and propensities to make individual

judgments about relative culpability is a sentencing

function, within the sole province of the judiciary.”

Id. at 239. In that case, when the Board singled out

Block for harsher treatment solely because of his

individual background, it was in effect, passing

sentence upon him for the second time. The Third

Circuit determined that the Board applied standards

that were divorced from the policy and purpose of

parole, abusing its discretion and violating Block's

right to due process of law. /d. at 240.

In the present, the Air Force Parole and

Clemency Board has no procedures or protections for

the revocation of Petitioner’s street time for failure

to comply with MSR. In fact, Air Force Instruction

31-205, The Air Force Corrections System, dated

April 7, 2004, provides:

12

AFC&PB proceedings are not open to the

public and the Board does not permit personal

appearances by or on behalf of the inmate,

victims, or other interested individuals. The

Board considers any written, audio, or video

material sent by or on behalf of the inmate,

victims, witnesses and other interested

individuals.

Additionally, Petitioner's good time was also

revoked. According to DoDI 1325.7:

E£26.1.1. Good conduct time shall be accorded

each prisoner serving a sentence(s) imposed

by a court-martial or other military tribunal

for a definite term or terms of confinement. It

shall not be given to prisoners who have a life

sentence. Good conduct time shall be credited

monthly with a deduction from the term of

sentence(s) beginning with the day that the

sentence begins. Good conduct time shall be

credited at the rates described below:

E26.1.3. A parole or probation violator, on

return to confinement, shall earn good conduct

time at the rate applicable to the sentence in

effect at the time of violation of parole or

probation.

In this case, Petitioner’s MSR was revoked, his

street time credit taken away, his good time credit

taken away, and his maximum release date

extended. There is no record to even establish that

the Board’s decision was warranted or based upon

13

any evidentiary standard. Certainly, there is no

assurance that its decision was not arbitrary,

capricious, or erroneous. And, there is nothing in

the record to indicate that any procedure was

enacted to ensure fair consideration of Petitioner's

earned good time. Although the revocation letter

contains the requisite language, it lacks any

substance as required.

Indeed, this Court has described the revocation of

parole alone as “inflictling] a ‘grievous loss’ on the

parolee and often on others.” Wo/ff 418 U.S. at 560

(quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972)). This case involves the revocation of MSR

and, as such, is entitled at least to minimum due

process protections. While Petitioner was provided

with certain procedural niceties for his MSR

Revocation hearing, no procedural due process was

afforded to Petitioner in regards to his revocation of

good time, as in Wo/ff or his street time credit. The

Board merely considered second hand information in

the form of the original letter used to issue an arrest

warrant, subject to the probable cause standard.

The final finding of fact was made without reference

to any other evidence; except to say the conduct had

occurred. The conclusory statements as a result of

repeating the allegations are absent of any

underlying facts or evidence in support. This is

inconsistent with the holding that supervised release

revocation requires more than a probable cause

determination and requires reliable evidence and a

written statement explaining the evidence relied

upon and the reasons for revocation.

14

In this case, hke Wo/ff no procedural due process

was afforded to Petitioner in regards to his

revocation of credit. Generally, a prisoner whose

parole is revoked shall receive credit for time spent

on parole unless (1) the parolee commits and pleads

guilty to or is convicted of a new offense punishable

by a term of imprisonment or (2) if the Board finds

that the parolee was not in material compliance with

the conditions of parole. DoDI 1325.7, 4 6.17.11.

App. 2la. It appears the Board elected the second

exception for the revocation of good time credit but

the due process requirements to determine the

violation in fact occurred are lacking. The reasoning

for finding Petitioner was not in material compliance

was that the conduct occurred without affording any

due process considerations, including witnesses,

evidence and/or statements, except the original

arrest warrant.

As such, servicemembers have less protections

than other inmates sentenced to supervised release:

an outcome which is in contravention with other

lower federal courts. By being able to revoke earned

credit against an adjudged sentence, the armed

forces’ supervised release program results in a

servicemember serving a longer sentence than that

adjudged. The Board’s action violated the Fifth

Amendment.

IT. Petitioner was confined longer than

authorized under his approved sentence.

15

In United States v. Pena, 64 M.J. 259 (C.A.A.F.

2007), the appellant challenged the authority of the

DoD to establish the MSR program in the absence of

express statutory authority. The C.A A.F. noted that

the scope of its review did not extend to supervision

of all aspects of the confinement and release process.

Id. at 264. Rather, its review was limited to the

impact of such conditions on the findings and the

sentence. /d.

The C.A.A.F. specifically addressed MSR’s effect

upon the adjudged sentence, noting the conditions of

mandatory release did have some impact upon the

appellant. Jd. at 266. However, the court ruled that

the participation in MSR program itself did not

increase the punishment adjudged by the court-

martial. In particular, the court stated “we do not

disregard the possibility that the Mandatory

Supervised Release program could be imposed in a

manner that increases the punishment above the

punishment adjudged by the court-martial.” Jd.

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.” U.S. Const. amend. VIII; see

also Article 55, UCMJ, 10 U.S.C. § 855 (2000). This

Honorable Court has stated that punishments violate

the Eighth Amendment when they “are incompatible

with the evolving standards of decency that mark the

progress of a maturing society, or which involve the

unnecessary and wanton infliction of pain.” Estelle

v. Gamble, 429 U.S. 97, 102-03 (1976) (Gnternal

quotation marks and citations omitted).

16

“Since any confinementis the deprivation of

personal freedom for a_ specified period, it is

axiomatic that a confined person should be released

once the confinement has been served.” United

States v. Mansfield, 33 M.J. 972, 995 (A.F.C.M.R.

1991) (citing United States v. Hilt, 18 M.J. 604

(A.F.C.M.R. 1984). If an accused is held in

confinement beyond his required release date, an

accused merits “meaningful relief’ with respect to

the remainder of the sentence. A7/t, 18 M.J. at 604

(citing United States v. Suzuki, 14 M.J. 491 (C.M.A.

1983)). See United States v. Weber, 56 M.J. 736, 738

(C.G. Ct. Crim. App. 2002) (citing United States v.

Keith, 36 M.J. 518, 519 (A.C.M.R. 1992)).

In Petitioner's case, based on allegations of

noncompliance with his conditions for MSR,

Petitioner was placed back in confinement and was

held 35 days beyond his maximum release date,

increasing his sentence in violation of the Eighth

Amendment.

CONCLUSION

The Board unlawfully modified and increased the

severity of the Petitioner’s approved sentence by

imposing the MSR conditions upon him, revoking his

previously earned good time and street time without

any meaningful due process considerations and

keeping him beyond his maximum release date,

subjecting him to a longer sentence than what was

adjudged. The Board’s actions violated the Fifth and

Eighth Amendment. For the foregoing reasons,

17

Petitioner respectfully requests that this Honorable

Court grant his petition for a writ of certiorari.

Respectfully submitted,

JENNIFER J. RAAB

Captain, U.S. Air Force

Counsel of Record

SHANNON A. BENNETT

Major, U.S. Air Force

AF Legal Operations Agency

Appellate Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-1562

Counsel for Petitioner

la

UNITED STATES, Appellee

Vv.

Doncosta E. SEAWELL, Cadet

U.S. Air Force, Appellant

UNITED STATES

COURT OF APPEALS FOR

THE ARMED FORCES

2008 CAAF Lexis 921

August 5, 2008, Decided

NOTICE: DECISION WITHOUT PUBLISHED

OPINION

OPINION:

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, said petition is hereby

granted, and the decision of the United States Air

Force Court of Criminal Appeals is affirmed.

2a

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Vv.

Cadet DONCOSTA E. SEAWELL

United States Air Force

ACM 35531 ¢ rev)

December 28, 2007, Decided

COUNSEL: For Appellant: Colonel Beverly B.

Knott, Colonel Cai.os L McDade, Major Terry L.

McElyea, Capt James M. Winner, Captain Anthony

D. Ortiz, and Frank ~4J. ~ Spinner, _ Esq.

For the United States: Colonel Gerald R. Bruce,

Colonel LeEllen Coacher, Lieutenant Colonel Robert

V. Combs , Lieutenant Colonel Gary F. Spencer,

Major Matthew S. Ward, Major John C. Johnson,

and Major Brendon K. Tukey.

JUDGES: Before FRANCIS, SOYBEL and BRAND,

Appellate Military Judges.

OPINION BY: Per Curiam

OPINION

OPINION OF THE COURT

3a

Consistent with his pleas, the appellant was

convicted of forcible sodomy, in violation of Article

125, UCMJ, 10 U.S.C. § 925. His approved sentence

consists of a dismissal, confinement for 18 months,

and total forfeitures.

This case is before our Court for the second time.

In Unit tes v wi 3. M.J. 26 FF. Ct.

Crim. App. 2005) (unpub. op.), we affirmed the

findings and sentence. On appeal, our superior court

affirmed the findings, but set aside the sentence and

returned the record to the Judge Advocate General

of the Air Force for remand to our Court.

The issue specified for consideration with respect

to the sentence is: WHETHER THE DECISION TO

DISAPPROVE TIME SERVED ON MANDATORY

SUPERVISED RELEASE AND IMPRISON

APPELLANT BEYOND HIS MAXIMUM RELEASE

DATE INCREASED APPELLANT'S PUNISHMENT

ABOVE THE SENTENCE APPROVED BY THE

CONVENING AUTHORITY. SEE UNITED STATES

V. PENA, 64 M.J. 259 (C.A.A.F. 2007). }

Background

The appellant was sentenced, on 16 October

2002, to a dismissal, confinement for 2 years, and

total forfeitures. The convening authority, in

accordance with the pretrial agreement, reduced the

approved confinement to 18 months. On 25 June

' Although through his brief, the appellant has raised three

additional issues, we will limit our decision to the issue

specified. See Article 67(e), UCMJ, 10 U.S.C. § 867(e).

4a

2003, the appellant was denied parole. He was

advised, on 3 September 2003, that he would be

placed in the Mandatory Supervised Release (MSR)

program on his minimum release date, 29 December

2003. On 29 December 2003, the appellant was

released on MSR until his maximum release date of

15 April 2004.

On 2 February 2004, authorities were notified of

alleged parole (MSR)? violations occurring on 11 and

14 January 2004. The appellant's supervised release

was suspended as of that date. On 14 April 2004,

after substantial compliance with governing

regulations,3 the Air Force Clemency and Parole

Board (AFC&PB); revoked the appellant's parole and

denied him administrative credit for his "street

time." The issue of whether the appellant would

receive credit for his "street time"4 was specifically

addressed by the AFC&PB. The board determined

that because the appellant violated the conditions of

the MSR program within two weeks of release, the

appellant was never "in material compliance with

the conditions" of MSR during the entire period of

his time on supervision. See DODI 1325.7, PP 6.20.6,

6.17.11.2. The appellant's maximum release date

was adjusted by 35 days. ®

2 In execution, MSR is virtually identical to parole. United

States v. Pena, 61 M.J. 776, 780 (A.F. Ct. Crim. App. 2005),

aff'd, 64 M.J. 259 (C.A.A.F. 2007)

3 DODI 1325.7, Administration of Military Correctional

Facilities and Clemency and Parole Authority (21 Jul 2001);

AFI 31-205, The Air Force Corrections System (9 Apr 2001); see

also Pena, 61 M.J. 776.

4 29 Dec 03 - 2 Feb 04.

5 The time he spent on MSR.

;

5a

Discussion

The issue whether the appellant's sentence has

been unlawfully increased is an issue we review de

novo. United States v. Pena, 64 MJ. 259, 265

(C.A.A.F. 2007). Generally, the administrative

consequences of a sentence, such as early release

programs, do not constitute punishment. Jd. There is

a possibility "that the MSR program could be

imposed in a manner that increases the punishment

above the punishment adjudged by a court-martial.

The burden, however, is on the party challenging the

conditions to demonstrate there has been an

increase above the punishment of confinement

imposed at trial." Jd. at 266.

In Pena, the appellant was predominantly

complaining about the conditions® of his parole

(MSR) whereas in the case sub judice, the appellant

complains that the decision to not award credit for

“street time" and to re-imprison the appellant, thus

creating an adjustment in his maximum release

date, unlawfully increased his punishment. The

appellant has failed, even minimally, to demonstrate

how being released from confinement on parole; and

then, after an administrative hearing, being re-

confined upon findings of violations of that parole:

and being required to serve his approved sentence

equates to an unlawful increase in his sentence.

6 Conditions that were far more onerous than those imposed

upon Cadet Seawell.

6a

The appellant was required to serve his sentence

without receiving credit, as determined by the

AFC&PB, in accordance with procedures, for the

time he spent on the "street" on MSR. Requiring the

appellant to serve out his sentence merely resulted

in an adjusted maximum release date, not an

increase in punishment. He spent no more time in

jail than the total of his approved sentence.

Conclusion

The previously approved and affirmed findings,

and the sentence are correct in law and fact, and no

error prejudicial to the substantial rights of the

appellant occurred. Article 66(c), UCMJ, 10 U.S.C. §

866(c); United States v. Reed, 54 M.J. 37, 41

(C.A.A.F. 2000). Accordingly, the findings and

sentence are

AFFIRMED.

7a

UNITED STATES, Appellee

Vv.

Doncosta E. SEAWELL, Cadet

U.S. Air Force, Appellant

UNITED STATES

COURT OF APPEALS FOR

THE ARMED FORCES

65 M.S. 302

July 16, 2007, Decided

NOTICE: DECISION WITHOUT PUBLISHED

OPINION

JUDGES: RYAN, Judge (concurring in the result)

OPINION

On further consideration of the granted issues, 64

M.J. 317 (C.A.A.F. 2006), it is ordered that the

decision of the United States Air Force Court of

Criminal Appeals is hereby affirmed as to the

findings, but set aside as to the sentence. The record

is returned to the Judge Advocate General of the Air

Force for remand to the Court of Criminal Appeals

for consideration of the following issue with respect

to the sentence:

WHETHER THE DECISION TO DISAPPROVE

TIME SERVED ON MANDATORY SUPERVISED

8a

RELEASE AND IMPRISON APPELLANT BEYOND

HIS MAXIMUM RELEASE DATE INCREASED

APPELLANT'S PUNISHMENT ABOVE THE

SENTENCE APPROVED BY THE CONVENING

AUTHORITY. SEE UNITED STATES v. PENA, 64

M.J. 259 (C.A.A.F. 2007).

Thereafter, Article 67(b), Uniform Code of Military

Justice, 10 U.S.C. § 867(b)(2000), shall apply.

CONCUR BY: RYAN

RYAN, Judge (concurring in the _ result):

The remand in this case is based on United States

v. Pena, 64 M.J. 259 (C.A.A.F. 2007), a case in which

I did not participate. There is a potential reading of

the Pena decision that gives me pause with respect

to the threshold question of jurisdiction.

Not so long ago the Supreme Court reaffirmed a

fundamental principle of law: this Court's

jurisdiction is "strictly circumscribed" to "act only

with respect to the findings and sentence as

approved by the convening authority and as affirmed

or set aside as incorrect in law by the Court of

Criminal Appeals." C/z v. Goldsmith 6

529, 531, 534, 119 S. Ct. 15 143 L. Ed. i)

(1999) (citing Article 67(c), Uniform Code of Military

Justice (UCMJ), 10 U.S.C. 7(c) (2000)). In

addressing the limits of this Court's jurisdiction, the

Supreme Court further recognized the power of this

Court "to compel adherence to its own judgment"

when a "military authority attempted to alter a

judgment by revising a court-martial finding or

9a

sentence to increase the punishment, contrary to the

specific provisions of the UCMJ." Goldsmith, 526

U.S. at 536.

In light of this precedent, it is unclear to me

whether and how this Court has jurisdiction under

Article 67(c), UCMJ, to take action with regard to

something that is not itself part of the findings or

adjudged sentence or an alteration of the judgment.

Goldsmith, 526 U.S. at 536. On the one hand, Pena

appears to recognize this limitation. 64 M.J. at 266

(focusing on whether there is "an increase in the

punishment of confinement adjudged by the court-

martial"). On the other hand, Pena also suggests

that this Court has jurisdiction to review "post-trial

confinement and release conditions on _ direct

appeall,] . . . limited to the impact of such conditions

on the findings and the sentence." 64 M.J. at 264. I

am concerned that this latter statement may be read

to sweep more broadly than our legislative mandate.

A brief review of the Mandatory Supervised

Release Program (MSRP) that Pena complained of

heightens the reservation I have about the breadth

of this statement. Pena complained that:

he was unable to stop in Colorado to ship his

household goods to Illinois, that he incurred a ten

dollar per week expenditure for transportation to

the sex offender treatment program, that he was

required to attend Alcoholic Anonymous classes

three times a week at night and sex offender

treatment classes once a week during the day,

that he had various other appointments and a

requirement to give a urine sample on short

10a

notice every two weeks, and that the conditions of

mandatory supervision left him unable to find

work to support his family.

Id.

I do not see how these complaints involve an

alteration of the adjudged sentence. This Court held |

that Pena failed to show that his “burdens [were]

such that they resulted in an increase in the

punishment of confinement adjudged by the court-

martial." Jd at 266. But that statement by this :

Court could be read as support for the proposition

that determining whether the MSRP results in an

increase in the punishment of confinement is not

limited to an actual alteration of the adjudged

sentence, but includes assessments “about the

personal, psychological, economic, and family

impact" of a MSRP on the party “appealing the ;

sentence." /d. It is unclear to me how social, family, ;

and psychological issues constitute an alteration of

an adjudged sentence. It is also unclear to me how

we have the power to review collateral consequences

of the MSRP, a program administered by executive

branch officials on the Clemency and Parole Board.

See Goldsmith, 526 U.S. at 536.

It remains to be seen whether my reservation is

warranted. Regardless, a summary remand with no

briefing on the jurisdictional issue is not the proper

vehicle to address the issue. Consequently, I join the

Court's disposition here today. But I am open to

revisiting the issue, as necessary, in an appropriate

case.

~

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UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Vv.

Cadet DONCOSTA E. SEAWELL

United States Air Force

ACM 35531

November 17, 2005, Decided

COUNSEL: For Appellant: Colonel Beverly B.

Knott, Colonel Carlos L McDade, Major Terry L.

McElyea, Capt James M. Winner and Frank J.

Spinner, Esq.

For the United States: Colonel LeEllen Coacher,

Lieutenant Colonel Gary F. Spencer, Lieutenant

Colonel Robert V. Combs and Major John C.

Johnson.

JUDGES: Before STONE, MATHEWS, and

JACOBSON, Appellate Military Judges.

OPINION BY: MATTHEWS

OPINION

OPINION OF THE COURT

MATHEWS, Judge:

12a

The appellant was convicted, in accordance with

his pleas, of forcible sodomy, in violation of Article 3

125, UCMJ, 10 U.S.C. § 925. He was sentenced by a

military judge sitting as a general court-martial to

dismissal from the service, confinement for 2 years,

and forfeiture of all pay and allowances. Pursuant to

a pretrial plea agreement, the convening authority ‘

reduced the appellant's term of confinement to 18 :

months, but otherwise approved the sentence as

adjudged.

The facts relevant to the disposition of this appeal

are as follows: On 28 December 2001, while visiting

Los Angeles, California, the appellant went to the

home of EH, a former high-school classmate. EH is

confined to a wheelchair, suffering from a severe

form of cerebral palsy. When EH opened the door,

the appellant went into her home, refusing her

entreaties to leave. He then proceeded to pull her |

from her wheelchair and, ignoring her repeated ;

pleas to stop, pinned her down and repeatedly anally _

sodomized her. The force of his assault was sufficient

to cause persistent, visible bleeding, and left EH in

pain and in shock. When he finished, the appellant

patted EH on the head, saying "Sorry it had to be

like this." He put her back in her wheelchair, with

her pants still pulled down around her ankles, and

left.

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On appeal, he urges us to find that the convening

authority in his case, the Superintendent of the

United States Air Force Academy (USAFA), was

"disqualified . . . because he was under intense

scrutiny” regarding sexual assault allegations

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involving USAFA cadets. We _ review claims

concerning disqualificationof the convening

authority de novo. United States v. Taylor, 60 M.J.

190, 194 (C.A.A.F. 2004). The appellant bears the

burden of making a prima facie case for

disqualification. /d. (citing United States v. Wansley,

46 M.J. 335, 337 (C.A.A.F. 1997)).

We conclude that the appellant has failed to meet

his burden. The documents provided by the

appellant's counsel show that the convening

authority "was scheduled to retire" and that his

pending retirement was a matter of public record

prior to taking action on the appellant's case. Thus,

we find that - contrary to the appellant's claims - the

convening authority did not permit concerns about

his career to influence his action. Article 66(c),

UCMJ, 10 U.S.C. § 866(c). Further, we find that the

appellant waived any error related to the "immense,"

"national" scrutiny of the Academy by failing to raise

it prior to the age acne authority's action. See

ter, M.J. 447 -.M.A

1992).

Appellant also points to an e-mail sent by the

convening authority, in his capacity as the USAFA

Superintendent, suggesting that the Air Force. and

the USAFA have "zero tolerance for sexual assault."

As noted by our superior appellate court, the phrase

"zero tolerance" may be interpreted in many ways,

ranging from benign to prejudicial. United Stat os

Simpson, 58 MJ. 368, 375 (C.AA.F. 2003).

reminder that the service will not overlook some

forms of misconduct is in itself innocuous. Jd. We

l4a

conclude that the convening authority's e-mail was

such a reminder and not an endorsement of any

particular result.

Viewed in context with its caution that news

reports “typically don't reflect all the factors that

must be considered in judging whether these cases

have been handled fairly," as well as references to

the need for justice, “appropriate” discipline, and the

importance of fairness to both parties, the e-mail

falls clearly on the benign side of the spectrum.

Moreover, we note that the convening authority the

appellant now complains was biased, is the same one

who signed the appellant's pretrial plea agreement.

It is difficult to envision how the appellant - who

faced the possibility of confinement for life, without

parole - could realistically have expected a more

lenient deal.

We have considered the appellant's remaining

assignments of error and resolve them adversely.

See United States v. Pena, 61 M.J. 776, (A.F. Ct.

Crim. App. 15 September 2005). The findings and

sentence are correct in law and fact, and no error

prejudicial to the substantial rights of the appellant

occurred._Article 66(c), UCMJ: United States v.

Reed, 54 M.J. 37, 41 (C.AA.F. 2000). Accatdinae

the approved findings and sentence are

AFFIRMED.

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15a

Department of Defense Instruction

NUMBER 1325.7

July 17, 2001

Incorporating Change 1, June 10,

2003

USD(P&R)

SUBJECT: Administration of Military Correctional Facilities

and Clemency and Parole Authority

References:

(a) DoD Instruction 1325.7, “Administration of

Military Correctional Facilities and Clemency and

Parole Authority,” December 17, 1999(hereby

canceled)

(b) DoD Directive 1325.4, "Confinement of Military

Prisoners and Administration of Military Correctional

Programs and Facilities," September 28, 1999

(c) DoD Directive 1300.17, "Accommodation of

Religious Practices Within the Military Services,"

February 3, 1988

(d) Title 10, United States Code

(e) through (k), see enclosure |

16a

Department of Defense Instruction 1325.7,

Administration of Military Correctional facilities and

Clemency and Parole Authority, 4 6.17.10 (July 17,

2001):

6.17.10.1. When a prisoner's parole has

been suspended, a preliminary

interview shall be held to determine

whether probable cause exists. to

establish that a parolee violated a

condition of parole. If, however, the

parolee absconds parole or pleads guilty

to or is convicted of an offense that is

punishable by imprisonment, _ the

parolee's absconding, the guilty plea or

conviction shall suffice as probable

cause and a preliminary interview may

be waived by the Clemency and Parole

Board of the prisoner's Service

6.17.10.2. The preliminary interview

shall normally be conducted by a

neutral and detached officer at or near

the place of the alleged parole violation.

6.17.10.3. The parolee shall be provided

written notice of the preliminary

interview, including the purpose of that

interview.

6.17.10.4. The parolee shall be given an

opportunity to inspect the evidence on

which the revocation is based and an

17a

opportunity to be heard and to present

relevant matters. Witnesses called by

the parolee shall be at no expense to the

Government.

6.17.10.5. The parolee may be

represented at the _ preliminary

interview by an attorney at no expense

to the Government. The role of an

attorney at a preliminary interview

shall be limited in accordance with

subparagraph 6.17.10.13., below.

6.17.10.6. When the officer conducting

the preliminary interview finds

probable cause to believe that the

parolee violated any condition of parole,

the Board may order a parole violation

hearing. The violation hearing shall be

conducted before a prisoner's parole is

revoked. The purpose of the violation

hearing is to determine whether the

parolee has violated any condition of

parole and, if so, whether the parole

should be revoked.

6.17.10.7. The parole violation hearing

shall normally be held at or near the

place of the alleged violation. When the

parolee has been returned to a military

confinement facility or is confined by

civil authorities, the parole violation

hearing may be held at the place of

confinement.

18a

6.17.10.8. A Clemency and Parole Board

of the inmate's Military Department

shall appoint a hearing officer or panel

to conduct a parole violation hearing.

The hearing officer or panel shall be

neutral and need not be, or include, a

judicial officer or attorney.

6.17.10.9. The parolee and all victims

indicating a desire to be notified shall

be given written notice of the violation

hearing. The notice to the parolee shall

inform the parolee of the alleged

violation, the purpose of the parole

violation hearing, the evidence on

which the parole violation hearing is

based, the parolee's rights at the parole

violation hearing, and the options

available to the Clemency and Parole

Board.

6.17.10.10. Evidence on which a finding

of violation may be based shall be

disclosed to the parolee at least 10 days

before the parole violation hearing. If

evidence supporting a parole violation

is discovered subsequent to the hearing,

the parolee will be given 10 days to

respond in writing to the new evidence.

6.17.10.11. The scope of a _ parole

violation hearing shall be limited to the

examination of evidence of an alleged

parole violation, relevant questioning of

19a

witnesses, pertinent statements as to

an alleged parole’ violation, and

whether the parole should be revoked.

6.17.10.12. The parolee may present

witnesses and documentary evidence, at

no expense to the Government, on his

or her behalf and may cross-examine

adverse witnesses subject to limitations

imposed by the hearing officer or panel

for good cause. The hearing officer or

panel may limit or exclude any

irrelevant or _ repetitious witness,

statement, question, or documentary

evidence.

6.17.10.13. The parolee may be

represented at a _ parole violation

hearing by an attorney or

representative of his or her choice at no

cost to the Government. When

requested by the parolee, a military

attorney shall be provided; however, the

parolee has no right to a military

attorney of his or her choice. The role of

any representative or attorney shall be

limited to the examination of witnesses,

presentation of evidence, and _ the

offering of a statement on the parolee's

behalf as to whether parole should be

revoked. Challenges to the parole

violation hearing proceedings shall not

be permitted. The hearing officer or

panel may deny, for good cause, a

20a

parolee's choice of a _ nonattorney

representative.

6.17.10.14. Parole may be revoked

based on a finding that a parolee has

violated a condition of parole by failure

to pay a fine or make restitution only if

the parolee refused to pay the fine or

make restitution when the parolee had

sufficient resources; or the parolee

failed to make sufficient bona fide

efforts to obtain employment, borrow

money, or legally acquire funds with

which to pay the fine or make

restitution. If he parolee could not pay

the fine or make restitution, despite

sufficient bona fide efforts to acquire

the resources to do so, parole may be

revoked only if no _ alternative

disposition exists that will adequately

serve the need for good order and

discipline within the Armed Services

and the correctional treatment of the

parolee.

6.17.10.15. A Clemency and Parole

Board shall take final action on the

findings and recommendations of the

officer or panel conducting a parole

violation hearing.

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Department of Defense Instruction 1325.7,

Administration of Military Correctional facilities and

Clemency and Parole Authority, § 6.17.11 (July 17,

2001):

6.17.11. A prisoner whose parole is

revoked shall receive credit for time

spent on parole except as follows:

6.17.11.1. If, after being released on

parole, the parolee commits and pleads

guilty to or is convicted of a new offense

that is punishable by a term of

imprisonment, forfeiture of the time

from the date of release to the date of

suspension or revocation of that parole

as a result of that new offense may be

ordered by the Clemency and Parole

Board and such forfeited time shall not

be credited to service of the sentence.

An actual term of confinement need not

have been imposed for such conviction if

the statute under which the parolee was

convicted permits the trial court to

impose any term of confinement. If such

conviction occurs subsequent to a parole

violation hearing, a Clemency and

Parole Board may _ reconsider’ the

forfeiture of time served on parole or

other disposition, as appropriate.

6.17.11.2. If the Clemency and Parole

Board finds that a parolee refused or

failed to respond to any reasonable

22a

request, order, or summons of a

Clemency and Parole Board or any agent

thereof, including the assigned probation

officer, or if a Clemency and Parole

Board finds that the parolee was not in

material comphance with the conditions

of parole, a Clemency and Parole Board

may order the forfeiture of time from

date of the refusal, failure or violation to

the date of revocation or return to

custody to serve the military sentence.

The length of time between release on

parole and the refusal, failure or

violation, and the nature’ and

seriousness of the misconduct shall be

considered in determining whether a

parolee was ever in material compliance

with the parole conditions.

6.17.11.3. Computation of any sentence

to be served shall be done in accordance

with applicable Service regulations.

Prisoners who have been transferred to

the FBOP, however, shall have their

remaining sentences and related issues

computed according to the FBOP

regulations when parole is suspended or

revoked.