Petition for Writ of Certiorari — Holloway v. United States

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B31 093 JAN 9 ~ 1996.

RE Te

’ IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1995

JONATHAN N. HOLLOWAY, Private First Class,

U.S. Marine Corps

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

JOHN FRANCIS HAVRANEK

Captain, U.S. Marine Corps

Counsel of Record

EVELIO K. RUBIELLA

Lieutenant, Judge Advocate

General’s Corps

U. S. Naval Reserve

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Building |11!

Washington, D.C. 20374-1111

(202) 433-4161

ov"

GS ES EL NR et eee

QUESTION PRESENTED

CAN THE REVIEW OF A PROBABLE CAUSE

DETERMINATION TO CONFINE SERVICE

MEMBERS, BY A MILITARY COMMANDER

RESPONSIBLE FOR ‘THE MORALE AND

DISCIPLINE OF THE COMMAND, SATISFY THE

FOURTH AMENDMENT PRINCIPLES

ANNOUNCED BY THIS COURT IN GERSTEIN V.

PUGH, 420 U.S. 103 (1975), AND COUNTY OF

RIVERSIDE V. McLAUGHLIN, 500 U.S. 44 (1991)?

(i)

TABLE OF CONTENTS

I EO Sa cds c ces bsnscscusece I

Ee ee 2

CONSTITUTIONAL PROVISIONS AND

EEPE MEUUEMEEWEIED wo ceccccccsvassicds 2

REASON FOR GRANTING THE WRIT

A MILITARY COMMANDER--WHO IS

RESPONSIBLE FOR THE MORALE

AND DISCIPLINE OF THE COMMAND

AND MAKES THE INITIAL

PROSECUTORIAL DECISION AS TO

WHETHER A MILITARY ACCUSED

SHALL BE CONFINED-CANNOT BE

NEUTRAL AND DETACHED TO MAKE

THE PROBABLE CAUSE

DETERMINATION REQUIRED BY

THE FOURTH AMENDMENT AND

THIS COURT’S DECISIONS _IN

GERSTEIN AND McLAUGHLIN. ........ 7

A. The probable cause determination in

EE ae 7

B. Neutral and detached. ............. i)

C. The effect of Holloway and Rexroat. ... 12

(ili)

CORN Ae Ls ETE S TA IAN cc ees 13

APPENDIX A (Order of the U.S. Court of Appeals for the

Rae FOS 08 666 oh 4 08 oe oe ek EE la

APPENDIX B (Opinion of the U.S. Navy-Marine Corps

Court of Criminal Appeals) .................. 2a

APPENDIX C (Opinion of the U.S. Court of Military

| Peer rr ere Try re Pry. Oe ey Sa

APPENDIX D (Opinion of the U.S. Navy-Marine Corps

Court of Militery Review) ................4. 10a

APPENDIX E (Opinion of the U.S. Court of Military

PRPs ees Dre err te 6 ete er ae 70a

(iv)

TABLE OF AUTHORITIES

Cases: Page

Coolidge v. New Hampshire,

Gas Sia Soe Gente 64 EL 10

County of Riverside v. McLaughlin,

We US. S419) 6 Nn ee passim

Courtney v. Williams, 1 M.J. 267

ee SOS cs ae Cee ae ee 6, 8

Gerstein v. Pugh, 420 U.S. 103 (1975) ....... passim

Shadwick v. City of Tampa,

SUE Glas BU A oe ck kd xe bao a 10, 11, 12

United States v. Ezell, 6 M.J. 307

Ge SE ls eae eee ee 11, 12

United States v. Fernandez, 24 M.J. 77

es Sa ee ea ks le ee ee 1]

United States v. Holloway, 36 M.J. 1078

CUBE EGR: S98 5S iiss oe 2,4

United States v. Holloway, 38 M.J. 302

FINI 6 eb ies Fee cig passim

United States v. Holloway, No. 92-0186

(N.M.Ct.Crim.App. February 10, 1995) ....... 2, 6

United States v. Holloway, _M.J. __,

No. 93-5010/MC (C.A.A.F. October 11, 1995) .. 1, 7

(v)

United States v. Lynch, 13 M.J. 394

(ee PR eee ee 6, 9, 10, 12

United States v. Malia, 6 M.J. 65

CCBA, TSGER caddvscaeeekesncwes ae 6

United States v. Rexroat, 38 M.J. 292

CRA, TORE ide Wet ehied ow ets passim

United States v. Sharrock, 32 M.J. 326

CCMA. 1ST): . cocbtecnecdal oes eee 10

United States v. Stuckey, 10 M.J. 347

COLA. 1967) 82s 'Eb ise csce Se cbdecti 10, 12

Constitutional Provisions:

U.S. Constitution, amendment IV ........... passim

Statutes and Rules:

UCI. at. 9 19 UBL. OOP wesc: cabeea cas 3

UCM J. ant. 3%, 10 UGG. GEEe iets acchiwens 12

UCMJ. at. 67, 10 USC. ORie i ss cd aeles 4

U.C.M.J. art. 86, 10 U.S.C. § 886 ............. 4

Manual for Courts-Martial, United States, |

1984, Rule for Courts-Martial 304 ............ 8

Manual for Courts-Martial, United States,

1984, Rule for Courts-Martial 305 ......... passim

(vi)

eee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

JONATHAN N. HOLLOWAY, Private First Class.

U.S. Marine Corps

Petitioner,

Vv.

UNI ED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

OPINIONS BELOW

The order of the United States Court of Appeals for

the Armed Forces,’ United States v. Holloway, MJ. _,

No. 93-S010/MC (C.A.A.F. October 11, 1995), affirming

the opinion of the Navy-Marine Corps Court of Criminal

Appeals is reprinted as Appendix A at Pet. App. la.

Formerly known as the United States Court of Military Appeals.

For the sake of clarity, this court will be referred to by its current name

throughout this petition.

(1)

The unpublished opinion of the Navy Marine-Corps

Court of Criminal Appeals,’ United States v. Holloway,

No. 92-0186 (N.M.Ct.Crim.App. February 10, 1995), is

reprinted as Appendix B at Pet. App. 2a.

The September 29, 1993, opinion of the United

States Court of Appeals for the Armed Forces, United

States v. Holloway, 38 M.J. 302 (C.M.A. 1993) is reprinted

as Appendix C at Pet. App. Sa.

The March 3, 1993, opinion of the Navy-Marine

Corps Court of Criminal Appeals, United States v.

Holloway, 36 M.J. 1078 (N.M.C.M.R. 1993) (en banc), is

reprinted as Appendix D at Pet. App. 10a.

JURISDICTION

The United States Court of Appeals for the Armed

Forces affirmed the decision of the Navy-Marine Corps

Court of Criminal Appeals on October 11, 1995 (Appendix

A at Pet. App. la.). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1259(3) (Supp. 1992).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourth Amendment to the U.S. Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

. Formerly known as the Navy-Marine Corps Court of Military

Review. For the sake of clarity, this Court will be referred to by its

current name throughout this petition.

—Qe

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

Uniform Code of Military Justice, article 9, 10

U.S.C. § 809 provides, in pertinent part:

(d) No person may be ordered into arrest or

confinement except for probable cause.

The relevant portions of Rule for Court-Martial 305

are contained in Appendix E at Pet. App. 85a.

STATEMENT OF THE CASE’

Private First Class [hereinafter PFC] Holloway

terminated a period of unauthorized absence on August 1,

1991, when he surrendered to military authorities and was

placed in pretrial confinement. On August 7, 1991, a

probable-cause hearing was held by a military magistrate

in accordance with Rule for Court Martial 305(i)

[hereinafter R.C.M.], Manual for Courts-Martial, United

States, 1984. The magistrate determined that continued

pretrial confinement was warranted, so PFC Holloway

remained confined until his court-martial on October 15,

1991.

PFC Holloway was tried on October 15, 1991, at

Marine Corps Base, Camp Lejeune, North Carolina, by a

court-martial composed of a military judge alone. PFC

Holloway pleaded guilty and was convicted of three

The statement of the case is drawn from United States v.

Holloway, 38 M.J. 302 (C.M.A. 1993).

unauthorized absence offenses, in violation of Uniform

Code of Military Justice [hereinafter U.C.M.J.] art. 86, 10

U.S.C. § 886. The military judge sentenced PFC

Holloway to confinement for four months, forfeiture of

$500 pay per month for four months, reduction to the

lowest enlisted pay grade, and a bad-conduct discharge.

The convening authority approved the sentence.

At his court-martial, PFC Holloway’s defense

counsel moved for 5 days additional pretrial-confinement

credit on the ground that PFC Holloway’s pretrial

confinement from August 3 to 7 was illegal in light of this

Court’s decision in County of Riverside v. McLaughlin, 500

U.S. 44 (1991). The military judge denied the motion on

the ground that McLaughlin did not apply to military

pretrial confinement procedures.

On March 3, 1993, the Navy-Marine Corps Court

of Criminal Appeals (en banc) agreed with petitioner and

reassessed his sentence to provide equivalent relief for his

5 days of illegal pretrial confinement. United States v.

Holloway, 36 M.J. 1078 (N.M.C.M.R. 1993). In response,

the Acting Judge Advocate General of the Navy certified,

pursuant to U.C.M.J., article 67(a)(2), 10 U.S.C. §

867(a)(2), the following issues for review by the United

States Court of Appeals for the Armed Forces:

DID THE NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

CORRECTLY CONCLUDE THAT THE

COMMANDING OFFICER’S PROBABLE

CAUSE REVIEW PURSUANT TO R.C.M.

30S(c), (d) AND (h)(2)(a), (h)\(2)(B) OF

THE 1984 MANUAL FOR

COURTS-MARTIAL CANNOT SATISFY

THE REQUIREMENTS OF GERSTEIN V.

PUGH, 420 U.S. 103, 95 S.CT. 854 (1975)

AND [COUNTY OF] RIVERSIDE V.

McLAUGHLIN, 500 U.S. 44 (1991)?

EVEN IF THIS COURT AGREES WITH

THE NAVY-MARINE CORPS COURT OF

MILITARY REVIEW THAT A

COMMANDING OFFICER IS

INCAPABLE OF ACTING IN A

NEUTRAL AND DETACHED MANNER

FOR EITHER ORDERING AN ACCUSED

CONFINED OR REVIEWING’ THE

PRETRIAL CONFINEMENT DECISION,

IS THE SEVEN DAY PERIOD OF

REVIEW AUTHORIZED UNDER R.C.M.

305(i) NEVERTHELESS REASONABLE

GIVEN THE UNIQUE NATURE AND

FUNCTION OF THE MILITARY AND

THE LESSENED DETRIMENTAL

IMPACT OF PRETRIAL CONFINEMENT

UPON A MILITARY ACCUSED?

United States v. Holloway, 38 M.J. 302 (C.M.A. 1993). In

United States v. Rexroat, 38 M.J. 292 (C.M.A. 1993),

reprinted as Appendix E at Pet. App. 70a, decided the

same day as petitioner’s case, the Court of Appeals for the

Armed Forces held that the 48-hour time limit for the

initial probable-cause review of pretrial confinement

established in McLaughlin was applicable to the military

services. Rexroat, 38 M.J. at 295. That court also held

that either the unit commander’s initial determination of

probable cause in accordance with R.C.M. 305(d) or

review of pretrial confinement in accordance with R.C.M.

305(h) can satisfy the requirements of Gerstein if the

commander qualifies as a neutral and detached magistrate.

Rexroat, 38 M.J. at 298.

In so ruling, the Court of Appeals for the Armed

Forces reversed its earlier precedents which disqualified a

commanding officer from acting as a judicial officer in

making a pretrial confinement determination. United

States v. Lynch, 13 M.J. 394 (C.M.A. 1982) (holding that

a person performing magisterial duties must be neutral and

detached from the law enforcement and prosecution system

itself); United States v. Malia, 6 M.J. 65 (C.M.A. 1978)

(recognizing the subordinate relationship the commanding

officer has with regard to the initial review officer);

Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976) (ruling

that a neutral party must review a commander’s probable

cause determination).

The Acting Judge Advocate General’s first certified

question was answered in the negative by the Court of

Appeals for the Armed Forces. Holloway, 38 M.J. at 303.

In answering the second certified question the court ruled

that the initial probable cause review must be completed

wiinin the McLaughiin time limits, but this review can be

conducted by the commanding officer. The Court of

Appeals for the Armed Forces then remanded the case

back to the Navy-Marine Corps Court of Criminal Appeals

to determine by whom the pretrial confinement was

reviewed in accordance with R.C.M. 305(h) and whether

the commander conducting this review was neutral and

detached. Holloway, 38 M.J. 304.

The Navy-Marine Corps Court of Criminal Appeals

determined that PFC Holloway’s commanding officer

ordered him into pretrial confinement, that he had probable

cause to do so, and that he was neutral and detached.

Holloway, No. 92-0186 at Pet. App. 2a. The Court of

Appeals for the Armed Forces affirmed this decision on

October 11, 1995. United States v. Holloway, MJ. _ ,

No. 93-5010/MC (C.A.A.F. October 11, 1995) at Pet. App.

la.

REASONS FOR GRANTING THE WRIT

A MILITARY COMMANDER--WHO IS

RESPONSIBLE FOR THE MORALE

AND DISCIPLINE OF THE COMMAND

AND MAKES THE INITIAL

PROSECUTORIAL DECISION AS TO

WHETHER A MILITARY ACCUSED

SHALL BE CONFINED--CANNOT BE

NEUTRAL AND DETACHED TO MAKE

THE PROBABLE CAUSE

DETERMINATION REQUIRED BY

THE FOURTH AMENDMENT AND

THIS COURT’S DECISIONS IN

GERSTEIN AND McLAUGHLIN.

A. The probable cause determination in the military.

This Court in Gerstein held that a person arrested

without a warrant is constitutionally entitled to a prompt

judicial determination of probable cause as a prerequisite

to extended restraint after arrest. 420 U.S. at 114. This

Court established that the "detached judgment of a neutral

magistrate" is necessary to afford the protection of the

Fourth Amendment to those persons held in pretrial

restraint. Jd. Further, this Court held that a person,

independent of the "police and prosecution," must make the

determination as to whether there is probable cause to

extend restraint of the individual. /d. at 118. In

McLaughlin this Court held that a "prompt" judicial

determination was to be held no later than forty-eight hours

after arrest. 500 U.S. at 56.

The Court of Appeals for the Armed Forces applied

this Court’s precedent in Gerstein to members of the

military, and further determined that there are no

considerations of military necessity that would require a

different rule. Courtney v. Williams, 1 M.J. 267 (C.M.A.

1976) (requiring a neutral and detached magistrate to

determine if a person could be detained and if he should be

detained).

In 1984, in response to this Court’s holding in

Gerstein and the lower court’s holding in Courtney, the

President promulgated R.C.M. 305(i) implementing the

judicial review to be afforded service members in pretrial

detention. R.C.M. 305. In doing so, the President

determined that the Gerstein review would be conducted

by a "neutral and detached officer ...." /d.

In the military, any commissioned officer can order

pretrial restraint of any enlisted person (R.C.M. 304(b)(2)),

but only a commanding officer to whose authority a

civilian or officer is subject may order the pretrial restraint

of that civilian or officer. R.C.M. 304(b)(1). Within

seventy-two hours of an individual being confined, the

commanding officer must decide if pretrial confinement is

to continue. R.C.M. 305(h)(2)(A). If continued pretrial

confinement is approved, the commanding officer must

draft a memorandum stating the reasons for the continued

pretrial confinement. R.C.M. 305(h\(2)(C). Within seven

days of the initial confinement there must be a review

(magistrate’s review) by a neutral and detached officer

appointed in accordance with regulations prescribed by the

Secretary concerned. R.C.M. 305(i).

Typically, the commanding officer is the individual

who makes the initial determination to place an accused

into pretrial confinement and then a few days later supports

this decision with a memorandum justifying the

confinement. Review of this memorandum is then

conducted by an independent magistrate, within seven days

of confinement, to determine: if extended restraint of the

individual is warranted. It was this procedure that was

established by the President to protect an individual’s

Fourth Amendment rights as announced by this Court in

Gerstein.

| The lower court’s decision in this case emasculated

the procedures established by the President and the

protection afforded by the Fourth Amendment. Presently,

if an individual is suspected of committing an offense, his

commanding officer can place him in pretrial confinement.

This decision to confine--one of morale, discipline, law

enforcement, and prosecution--can in and of itself serve as

the probable cause review. Incredibly, the lower court’s

interpretation of the Fourth Amendment’s requirement for

a neutral and detached magistrate permits the commanding

officer to review his own decision to confine.

Such an interpretation is akin to the fox guarding

the hen house and is a distinction that, heretofore, had not

been lost on the lower court. Chief Judge Sullivan, in his

dissent in the instant case below, reiterated that their

holding in Lynch had been in keeping with this Court’s

decision in Gerstein with respect to who could act as a

neutral and detached magistrate, and that a commander

who initially orders a suspect into pretrial confinement

cannot be the neutral and detached magistrate. Holloway,

38 M.J. at 304 (Sullivan, C.J., dissenting).

B. Neutral and detached.

This Court addressed the issue as to whether it is

constitutional for clerks of a municipal court to issue arrest

warrants for violations of city ordinances in Shadwick v.

City of Tampa, 407 U.S. 345 (1972). This Court’s opinion

as to what constitutes a neutral and detached magistrate

now stands in sharp contrast to actual practice in the

military. As this Court stated,

"Whatever else neutrality and detachment

might entail, it is clear that they require

severance and disengagement from activities

of law enforcement . . . [or] affiliation . . .

with prosecutors or police . . . for a]

connection with any law enforcement

activity or authority which would distort the

independent judgment the Fourth

Amendment requires ."

Id. at 350-51. See also Coolidge v. New Hampshire, 403

U.S. 433 (1971) (individuals who perform prosecutorial

functions cannot be neutral and detached magistrates for

purposes of the Fourth Amendment).

Prior to the decisions in petitioner's case and

Rexroat, the Court of Appeals for the Armed Forces had

determined that a commanding officer inherently functions

in law enforcement roles and therefore can never qualify

as a neutral and detached magistrate under Fourth

Amendment jurisprudence. United States v. Lynch, i3

M.J. 394, 396 (C.M.A. 1982) (a commanding officer is

"admittedly predisposed in his pretrial confinement

decision to a particular interest of law enforcement within

his command"); United States v. Stuckey, 10 M.J. 347, 361

(C.M.A. 1987) ("It seems perfectly clear that a military

commander--no matter how neutral and impartial he strives

to be--cannot pass muster constitutionally as a magistrate

. .. ."); United States v. Sharrock, 32 M.J. 326, 333

(C.M.A. 1991) (Everett, S.J., concurring in part and

dissenting in part) (citing with approval, Stuckey, supra)

("A commanding officer cannot be equated to a magistrate

. .«."); United States v. Ezell, 6 M.J. 307, 318 (C.M.A.

1979) ("Indeed, no official in the civilian community

having similarly combined functions [as a commanding

officer] could qualify as a neutral and detached magistrate

under Fourth Amendment jurisprudence.").

As occurred in PFC Holloway’s case, often an

accused’s commanding officer is not only the individual

deciding whether or not to place him in pretrial

confinement, but is also the convening authority for the

court-martial. The convening authority is the individual,

who in his sole discretion, determines whether an accused

will go to a court-martial. The convening authority’s role

in the military is similar to that of a district attorney or

U.S. Attorney. See United States v. Fernandez, 24 M.J.

77, 78 (C.M.A. 1987) ("In referring a case to trial, a

convening authority is functioning in a prosecutorial role.")

Further, “the military commander is statutorily and

constitutionally charged with the responsibility for the

morale and discipline of those within the command."

Rexroat, 38 M.J. at 301 (Cox, J. concurring). In fact,

Judge Cox has described the term "neutral and detached

commander" as an oxymoron. Jd. To hold that a

commanding officer, whose very job description includes

law enforcement amongst his command, is neutral and

detached ignores the principles of the Fourth Amendment

and this Court’s precedent.

This Court’s holding in Shadwick evinces a concern

that the reviewing official must be neutral and detached

from all activities of law enforcement and prosecution.

This does not mean that the individual must be neutral and

detached from a particular case, but requires that the

position held by the individual remain separate from law

enforcement and prosecution. Thus, the Court of Appeals

for the Armed Forces decision in this case and Rexroat.

that commanding officers can be neutral and detached

magistrates for purposes of conducting a Gerstein probable

cause review, fails to comport with this Court’s language

in Shadwick and the prior rulings of the Court of Appeals

in Ezell, Stuckey, and Lynch, supra.

The lower court’s holding in the instant case not

only abandons the Fourth Amendment, but also usurps the

power of the President. Under U.C.M.J., art. 36, 10

U.S.C. § 836, Congress delegated to the President limited

powers to implement the U.C.M.J. Specifically, the

President was given the Congressional power to prescribe,

"[p]retrial, trial and post-trial procedures." /d. The

President promulgated procedures that provided for a

neutral and detached probable cause review when he

implemented R.C.M. 305(i), MCM, United States, 1984.*

The lower court’s decisions in petitioner’s case and in

Rexroat establish a Gerstein review by persons

(commanding officers) not authorized by the President to

conduct such reviews.

C. The effect of Holloway and Rexroat.

In Gerstein this Court decided that a person who

was arrested and held for trial under a prosecutor’s

information is constitutionally entitled to a judicial

determination of probable cause for extended pretrial

restraint of liberty. 420 U.S. at 105. The prosecutor’s

information amounted to a memorandum filed by the

R.C.M. 305(i) clearly satisfies the principles of the Fourth

Amendment as announced by this Court in Gerstein by providing a

review by a neutral and detached magistrate. As currently drafted,

however, R.C.M. 305(i) fails to comply with this Court’s decision in

McLaughlin where the magistrate’s review has to be completed within

seven days instead the forty-eight hours established by this Court.

prosecutor as to why pretrial restraint was justified. As a

result a person could be confined solely upon the decision

of a prosecutor. Jd. at 106.

After the lower court’s decision in the instant case

and Rexroat the military operates under a nearly identical

scheme as this Court denounced nearly twenty-one years

ago in Gerstein. The commanding officer--who is

constitutionally charged with the discipline of his

command; decides who will and will not be placed in

pretrial confinement; approves all charges brought against

a service member; convenes the court-martial that will try

the service member; and eventually approves any sentence

awarded by a court--can presently place a person in

extended confinement by drafting a memorandum that in

and of itself serves as the probable cause review.

The effect of the lower court’s decision not only

failed to bring the military justice system in line with this

Court’s decision in McLaughlin, but took a step backwards

by creating a system that this Court long ago found to be

unconstitutional.

This Court’s main concern in Gerstein was to

prevent the denial of a person’s fundamental right to

liberty without due process of law. Fundamentally, this

Court in Gerstein found that the neutral and detached

reviewer cannot be anyone who has a prosecutorial or law

enforcement role. 420 U.S. at 112, 118. In the military

there is no other individual with a greater prosecutorial or

law enforcement role than a commanding officer. As such,

a commanding officer is not and cannot be a neutral and

detached magistrate as the two roles aré diametrically

opposed.

Conclusion

The petition for Certiorari should be granted. The

Fourth Amendment requires a determination of probable

cause by a neutral and detached magistrate to continue

pretrial confinement following a warrantless arrest. The

President, in the wake of this Court’s decision in Gerstein,

established procedures that must be followed to ensure that

military service members are accorded the Fourth

Amendment protection extended to all citizens. The Court

of Appeals for the Armed Forces has seen fit to ignore the

precedent of this Court, its own precedent, and the

procedures established by the President. The procedures it

has enunciated in the instant case do not meet the

constitutional requirements of the Fourth Amendment and

interfere with the President’s power to establish a just

system of judicial review under the Fourth Amendment.

The questions presented by this case are substantial and

have no other means of redress except by this Court.

Respectfully Submitted,

JOHN FRANCIS HAVRANEK

Captain, U.S. Marine Corps

Counsel of Record

EVELIO K. RUBIELLA

Lieutenant, Judge Advocate

General’s Corps

U. S. Naval Reserve

Navy-Marine Corps Appellate

Defense Division

Washington Navy Yard, Bldg. 111

Washington, D.C. 20037

(202) 433-4161

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

USCA Dkt. No. 93-5010/MC

Crim.App. No. 92-0186

UNITED STATES

Jonathan N. HOLLOWAY, 434 43 1454

On further consideration of the above-styled case in light

of the opinion of the United States Navy-Marine Corps

Court of Criminal Appeals dated February 10, 1995, on

remand by this Court, it is, by the Court, this 11th day of

October, 1995,

ORDERED: »

That the opinion of the Court of Criminal Appeals dated

February 10, 1995, holding that appellant was not entitled

to additional credit for time spent in pretrial confinement

is affirmed. The original decision of the Court of Criminal

Appeals (then the Court of Military Review'), 36 M.J.

1078 (1993), when was set aside by our opinion, 38 M.J.

032 (1993), is hereby reinstated only to the extent that it

affirmed the findings and so much of the sentence as

extents to a bad-conduct discharge, confinement for 4

months, forfeiture of $475.00 pay per month for 4 months,

and reduction to pay grade E-1.

' See 41 M.J. 213, 229, n.* (1994).

(la)

APPENDIX B

IN THE U.S. NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON D.C.

JAMES E.ORR ALBERT A. REED

T.D. KEATING

UNITED STATES

Jonathan N. HOLLOWAY, 434 43 1454

Private First Class (E-2), U.S. Marine Corps

NMCM 92 00186 Decided 10 February 1995

Sentence adjudged 15 October 1991. Military Judge: D.J.

Markosky. Review pursuant to Article 66(c), UCMJ, of

Special Court-Martial convened by Commanding Officer,

3d Battalion, 2d Marines, 2d Marine Division, FMF

Atlantic, Camp Lejeune, NC.

LT PHILIP SUNDEL, JAGC, USNR, Appellate Defense

Counsel

LT D.P. SHELDON, JAGC, USNR, Appellate Defense

Counsel

LT BRIAN B. RIPPEL, JAGC, USNR, Appellate

Government Counsel

LT SCOTT A. BROWNE, JAGC, USNR, Appellate

Government Counsel

AS AN UNPUBLISHED DECISION, THIS OPINION

DOES NOT SERVE AS PRECEDENT.

PER CURIAM:

This case has been remanded to us by the Court of

Appeals for the Armed Forces

for a determination of whether the

commander who ordered pretrial

confinement in accordance with RCM

305(d) was neutral and detached; when and

by whom the pretrial confinement was

reviewed in accordance with RCM 305(h);

and whether the commander who conducted

the RCM 305(h) review was neutral and

detached.

United States v. Holloway, 38 M.J. 302, 303-4 (C.M.A.

1993).

The Government has provided us with an affidavit from

Lieutenant Colonel (LtCol) Paul W. O’Toole, USMC, the

Commanding Officer, 3rd Battalion, 2nd Marine Regiment,

who was the appellant’s commanding officer at the time

the appellant was placed into pretrial confinement.

Although he does not remember "the particulars" of this

case, LtCol O’Toole states unequivocally that he "did not

become personally involved in the investigation." He

placed the appellant into pretrial confinement because of

his belief that, if he did not, the appellant "would likely go

on another unauthorized absence in the future." LtCol

O’Toole notes, in his affidavit, the offenses the appellant

had pending when he ordered him into pretrial

confinement. They included:

- unauthorized absence from 4 January 1990 until 29

March 1991, when the appellant was apprehended;

- unauthorized absence from 19 May 1991 until 17 July

1991 when the appellant surrendered;

- unauthorized absence from 18 July 1991 until 1 August

1991 when he surrendered.

He indicated further that he "would normally not pre-trial

{confine} an individual that surrendered to military

authorities, but in this case (having surrendered after his

second unauthorized absence and departing again the

following day) I felt it was reasonable and logical to

assume PFC Holloway would depart again in the

immediate future."

The appellant urges us to order a hearing in accordance

with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.

411 (1967), to inquire further into LtCol O’Toole’s

neutrality. We are not inclined to do so. The appellant

has given us no cause to question the underlying basis for,

or the validity of, the statements contained in LtCol

O’Toole’s affidavit. We conclude that he had more than

adequate probable cause when he ordered the appellant into

pretrial confinement and that he acted in a neutral and

detached capacity when he did so.

Accordingly, the appellant is due no additional credit for

the time he spent in confinement. United States v.

Rexroat, 38 M.J. 292 (C.M.A. 1993). -

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

No. 93-5010

United States, Appellant

Jonathan N. Holloway, Appellee

Argued July 12, 1993.

Decided September 29, 1993.

For the United States: Lieutenant Scott A. Browne.

JAGC, USNR (argued); Colonel T. G. Hess, USMC and

Lieutenant Commander S.A. Stallings, JAGC, USN (on

brief).

For the Accused: Lieutenant David P. Sheldon.

JAGC, USNR (argued).

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a special court-martial

convicted Private First Class Holloway of three

specifications of unauthorized absence, one terminated by

apprehension, in violation of Article 86, Uniform Code of

Military Justice, 10 USC § 886. The approved sentence

provides for a bad-conduct discharge, confinement and

forfeiture of $ 500.00 pay per month for 4 months, and

reduction to pay grade E-1.

On August |, 1991, after his third unauthorized absence,

Holloway surrendered to military authorities and was

placed in pretrial confinement. On August 7, 1991, a

probable-cause hearing was held by a military magistrate

in accordance with RCM 305(i), Manual for

Courts-Martial, United States, 1984. The magistrate

determined that continued pretrial confinement was

warranted, so Holloway remained confined until his

court-martial on October 15, 1991.

At trial, Holloway’s defense counsel moved for 5 days’

additional pretrial-confinement credit on the ground that

Holloway’s pretrial confinement from August 3 to 7 was

illegal in light of County of Riverside v. McLaughlin, 500

U.S. 44, 111 S.Ct. 1661 (1991). The military judge denied

the motion on the ground that McLaughlin did not apply

to military pretrial confinement procedures. On March 3,

1993, the Court of Military Review (en banc) agreed with

the defense and reassessed Holloway’s sentence to provide

equivalent relief for his 5 days of illegal pretrial

confinement. 36 MJ 1078. In response, the Acting Judge

Advocate General of the Navy certified the following

issues for review by this Court:

DID THE NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

CORRECTLY CONCLUDE THAT THE

COMMANDING OFFICER’S PROBABLE

CAUSE REVIEW PURSUANT TO RCM

305(c), (d) AND (h)(2)(a), (h\(2)(B) OF

THE 1984 MANUAL FOR

COURTS-MARTIAL CANNOT SATISFY

THE REQUIREMENTS OF GERSTEIN V.

PUGH, 420 U.S. 103, 95 S.CT. 854 (1975)

AND [COUNTY OF] RIVERSIDE V.

McLAUGHLIN, 500 U.S. 44, 111 S.CT.

1661 (1991)?

EVEN IF THIS COURT AGREES WITH

THE NAVY-MARINE CORPS COURT OF

MILITARY REVIEW THAT A

COMMANDING OFFICER IS

INCAPABLE OF ACTING IN A

NEUTRAL AND DETACHED MANNER

FOR EITHER ORDERING AN ACCUSED

CONFINED OR REVIEWING’ THE

PRETRIAL CONFINEMENT DECISION,

IS THE SEVEN DAY PERIOD OF

REVIEW AUTHORIZED UNDER RCM

305(i) NEVERTHELESS REASONABLE

GIVEN THE UNIQUE NATURE AND

FU:ICTION OF THE MILITARY AND

THE LESSENED DETRIMENTAL

IMPACT OF PRETRIAL CONFINEMENT

UPON A MILITARY ACCUSED?

In United States v. Rexroat, 38 MJ 292 (CMA 1993), we

held that the 48-hour time limit for the _ initial

probable-cause review of pretrial confinement which was

imposed in County of Riverside v. McLaughlin, supra, was

applicable to the military services. 38 MJ at 295. We also

held that either the unit commander’s initial determination

of probable cause in accordance with RCM 305(d) or

review of pretrial confinement in accordance with RCM

305(h) can satisfy Gerstein if the commander qualifies as

a neutral and detached magistrate. 38 MJ at 298.

Although the record before us reflects that Holloway’s

commander was not the formal accuser on the charge

sheet, we cannot ascertain which commander ordered him

into confinement, whether that officer was "directly or

particularly involved in the command’s law enforcement

function," United States v. Lynch, 13 MJ 394, 397 (CMA

1982), and when or by whom the RCM 305(h) review was

completed. Additional factfinding is thus required.

The first certified question is answered in the negative.

Either a commander’s probable-cause determination

pursuant to RCM 305(d) or the probable-cause review

pursuant to RCM 305(h) can satisfy Gerstein if the

commander is neutral and detached. Either can satisfy

McLaughlin if conducted within 48 hours.

The second certified question is answered as follows:

The 7-day period for conducting the RCM 305(i) review is

reasonable to comply with the Courtney "bail hearing,” but

the initial probable-cause review must be completed within

the McLaughlin time limits.

The decision of the United States Navy-Marine Corps

Court of Military Review is set aside. The record of trial

is returned to the Judge Advocate General of the Navy for

remand to that court for a determination of whether the

commander who ordered pretrial confinement in

accordance with RCM 305(d) was neutral and detached;

when and by whom the pretrial confinement was reviewed

in accordance with RCM 305(h); and whether the

commander who conducted the RCM 305(h) review was

neutral and detached. Thereafter, the record will be

returned directly to this Court for further review.

Judges CRAWFORD and WISS concur.

COX, Judge (concurring in part and dissenting in part):

For the reasons stated in my separate opinion in United

States v. Rexroat, 38 MJ 292 (CMA 1993), I agree that a

commander can conduct the probable-cause hearing, but |

dissent as to remedy. Holloway has long since served his

sentence to confinement. Further proceedings are

unnecessary. Even if the commander who authorized the

pretrial confinement were not neutral and detached, the

import of the extra credit on the overall sentence is

negligible. De minimis non curat lex. Art. $9(a), Uniform

Code of Military Justice, 10 USC § 859(a).

SULLIVAN, Chief Judge (dissenting):

The commander who initially ordered _ pretrial

confinement is not a neutral and detached magistrate for

purposes of Gerstein v. Pugh, 420 U.S. 103 (1975), and

County of Riverside v. McLauglin, 500 U.S. 44, 111 S.Ct.

1661 (1991). See United States v. Malia, 6 MJ 65, 66-67

(CMA 1978). This Court’s decision in United States v.

Lynch, 13 MJ 394 (CMA 1982), did not alter this

precedent. To the extent that this Court in United States v.

Rexroat, 38 MJ 292 (CMA 1993), reverses this precedent

and permits a hearing under United States v. DuBay, 17

USCMA 147, 37 CMR 411 (1967), in this case, I dissent.

10a

APPENDIX D

UNITED STATES NAVY-MARINE CORPS

COURT OF MILITARY REVIEW

UNITED STATES

JONATHAN N. HOLLOWAY, 434 43 1454,

PRIVATE FIRST CLASS (E-2),

U.S. MARINE CORPS

NMCM No. 92 0186

Decided March 3, 1993.

Sentence adjudged 15 October 1991. Méilitary Judge:

D.J. Markosky. Review pursuant to Article 66(c), UCMJ,

of Special Court-Martial convened by Commanding

Officer, 3d Battalion, 2d Marines, 2d Marine Division,

FMF Atlantic, Camp Lejeune, North Carolina, 28542-5506.

LT DAVID P. SHELDON, JAGC, USNR, Appellate

Defense Counsel.

LT SCOTT A. BROWNE, JAGC, USNR, Appellate

Government Counsel.

OPINION OF THE COURT EN BANC

WELCH, Judge:

lla

This guilty plea-unauthorized absence case’ raises a

significant issue concerning pretrial confinement. We must

determine whether County of Riverside v. McLaughlin, _

U.S. _, 111 S. Ct. 1661 (1991) applies to the U.S. Armed

Forces.2, We conclude it does, based on the following

reasoning.

I. THE HOLDING IN COUNTY OF

RIVERSIDE V. MCLAUGHLIN

' The appellant was tried by special court-martial on

15 October 1991. Based on pleas of guilty, he was

convicted of three violations of Article 86, Uniform Code

of Military Justice (UCMJ) Article 86, 10 U.S.C. § 886

(unauthorized absences from 4 January 1990 to 29 March

1991, 19 May to 17 July 1991, and 18 July to 1 August

1991). The judge sentenced him to confinement for four

months, forfeiture of $ 500 pay per month for four months,

reduction to pay grade E-1, and a bad-conduct discharge.

> After this case arrived without assignments of error,

we specified two issues:

I. ARE THE PRETRIAL CONFINEMENT REVIEW

PROVISIONS IN R.C.M. 305(h)(2)(A) AND (i)(1)

TIMELY IN LIGHT OF COUNTY OF RIVERSIDE V.

McLAUGHLIN, _US. _, 111 S. CT. 1661?

II. IF NOT, WHAT RELIEF IS APPROPRIATE FOR

A VIOLATION OF THE TIME LIMIT ESTABLISHED

IN McLAUGHLIN?

12a

The case was a class action challenging the manner in

which the county provided probable cause hearings for

persons arrested without a warrant. Under the county’s

procedures, weekends and holidays were not counted when

determining whether an arrested person was afforded a

probable cause determination without unnecessary delay

under the county’s "two-day" arraignment policy. Thus,

over the Thanksgiving holiday, it was possible to have a

seven day delay between arrest and a determination of

probable cause for arrest.

The Supreme Court granted certiorari to resolve a

conflict among four circuit courts of appeals as to the

meaning of a "prompt" probable cause determination under

the requirements of Gerstein v. Pugh, 420 U.S. 103 (1975).

Gerstein held that the Fourth Amendment requires a

prompt judicial determination of probable cause as a

prerequisite to an extended pretrial detention following a

warrantless arrest.

After noting that the vague standard of Gerstein (i.e.,

"prompt") simply had not provided sufficient guidance, the

Court stated:

Our task in this case is to articulate more

clearly the boundaries of what is permissible

under the Fourth Amendment. Although we

hesitate to announce that the Constitution

compels a specific time limit, it is important

to provide some degree of certainty so that

States and counties may establish procedures

with confidence that they fall within

constitutional bounds. Taking into account

the competing interests articulated in

Gerstein, we believe that a jurisdiction that

l3a

provides judicial determinations of probable

cause within 48 hours of arrest will, as a

general matter, comply with the promptness

requirement of Gerstein. For this reason,

such jurisdictions will be immune from

systemic challenges.

U.S. _, 111 S. Ct. at 1670.

The Court then established a "bright line" presumption:

Where an arrested individual does not

receive a probable cause determination

within 48 hours, the calculus changes. In

such a case, the arrested individual does not

bear the burden of proving an unreasonable

delay. Rather, the burden shifts to the

government to demonstrate the existence of

a bona fide emergency or other

extraordinary circumstances. The fact that

in a particular case it may take longer than

48 hours to consolidate pretrial proceedings

does not qualify as an _ extraordinary

circumstance. Nor, for that matter, do

intervening weekends. A jurisdiction that

chooses to offer combined proceedings must

do so as soon as reasonably feasible, but in

no event later than 48 hours after arrest.

Id.

Il. PROCEDURES FOR REVIEW OF

PRETRIAL CONFINEMENT UNDER

THE RULES FOF. COURTS-MARTIAL

l4a

Rule for Courts-Martial (R.C.M.) 305 includes specific

requirements for pretrial confinement of service members,

including a first step "72-hour" rule followed by a second

step "7-day" rule. Specifically:

A. R.C.M. 305(h\(2)(A) requires that "not later than 72

hours after ordering a prisoner into pretrial confinement, or

after receipt of a report that a member of the

commander’s unit or organization has been confined, the

commander shall decide whether pretrial confinement will

continue." R.C.M. 305(h)(2)(B) directs that the commander

order release of the prisoner unless the commander

believes that there is probable cause for continued

confinement, based upon standards stated in the Rule.

B. R.C.M. 305(i)(1) requires that "[a] review of the

adequacy of probable cause to believe the prisoner has

committed an offense and of the necessity for continued

pretrial confinement shall be made within 7 days of the

imposition of confinement." R.C.M. 305(i)(2) requires that

this review be made by a "neutral and detached officer

appointed in accordance with regulations prescribed by the

Secretary concerned.”

C. Exceptions to the above requirements are authorized

by R.C.M. 305(m) (n.b., based on operational requirements

and confinement of personnel at sea).

The above cited rules were drafted to comport with the

requirements of Gerstein and decisions of the Court of

Military Appeals, including Courtney v. Williams, 1 M.J.

267 (C.M.A. 1976). Analysis, R.C.M. 305, MCM, App.

21-16.

TET ne ne TT ae Oe

15a

iil. PRECEDENT OF THE COURT OF

MILITARY APPEALS

In Courtney v. Williams, the Court of Military Appeals

reviewed a petition for extraordinary relief challenging the

legality of the petitioner’s pretrial confinement. After

quoting from Gerstein and observing that the UCMJ

provided no procedure for reviewing the probable cause

determination made by a person ordering pretrial

confinement of a service member, the Court held that a

neutral and detached magistrate must decide whether there

is probable cause for such pretrial confinement (and

whether the service member should be confined). Most

importantly, the Court stated:

We believe that those procedures required

by the Fourth Amendment in the civilian

community must also be required in the

military community. We discern no

considerations of military necessity that

would require a different rule. Moreover,

respondents conceded during oral argument

Gerstein’s applicability to the military.

Courtney, 1 M.J. at 270.

The Court of Military Appeals’ deference to Gerstein

has been evidenced in decisions further defining the

meaning of Courtney v. Williams. For example, in United

States v. Lynch, 13 M.J. 394 (C.M.A. 1982), the Court

announced that "in light of Gerstein v. Pugh" the Court

believed that three categories of officials were

constitutionally qualified to be judicial officers who could

make the pretrial confinement probable cause decisions

(i.e., a military judge, a military magistrate empowered by

l6a

service regulations, and any other person authorized by the

UCMSJ to confine who is not directly or particularly

involved in the command’s law enforcement function). 13

M.J. at 397. See also United States v. Stuckey, 10 M.J. 347

(C.M.A. 1981); United States v. Malia, 6 M.J. 65 (C.M.A.

1978).

A Court of Military Review is not generally free to

ignore a precedent established by the Court of Military

Appeals. United States v. Jones, 23 M.J. 301, 302

(C.M.A. 1987). In our opinion, this requirement to follow

precedent is particularly important in cases involving

constitutional issues. Because we believe the Court of

Military Appeals has established the precedent that

Gerstein is applicable in the Armed Forces, and Gerstein

involves a constitutional issue, we conclude that we must

follow that precedent. Since we must follow Gerstein, we

logically conclude that we must also follow a decision of

the Supreme Court further defining the meaning of terms

in Gerstein, unless otherwise directed by the Court of

Military Appeals.

IV. EFFECT OF PRECEDENT ON R.C.M.

305

The Government agrees with the appellant that his

commanding officer’s "72-hour" review, by itself, did not

satisfy the requirements of Gerstein and County of

Riverside v. McLaughlin. However, for clarification, we

hold that a commanding officer’s review within 72 hours

of pretrial confinement of a member of his or her

command (i.e., the review required by R.C.M. 305(h)(2))

dees not satisfy the requirement for a prompt determination

of probable cause for confinement by a neutral and

detached officer. See Lynch, supra.

17a

Additionally, based on precedent discussed above, we

join the United States Army Court of Review (en banc) in

holding “that the seven-day time requirement for the

review of probable cause for pretrial confinement as

required by R.C.M. 305(i)(1) will not pass constitutional

muster." United States v. Rexroat, 36 M.J. 708, 712

(A.C.M.R. 1992). More precisely, we hold that when a

service member does not receive a probable cause

determination within 48 hours of being placed in pretrial

confinement, the burden shifts to the Government to

demonstrate the existence of a bona fide emergency or

other extraordinary circumstances justifying the failure to

provide such a determination.

Lastly, we hold that the combination of the two

requirements imposed by the "72-hour" rule of

R.C.M.(h)(2) and the "7-day" rule of R.C.M. 305(i)(1)

does not satisfy the requirements imposed by precedential

decisions cited above. This determination is made to

address an argument made by the Government during oral

argument that is not fully presented in the Government’s

brief (i.e., that the two-step process in its entirety satisfied

the requirements for a prompt review by a neutral and

detached officer, and was appropriately created by the

President after due consideration of numerous factors

related to confinement of military personnel that have no

parallel in civilian society).

V. COMMENTS ON VIEWS OF THE

MINORITY

In contending for conclusions contrary to those stated

above, the dissenters advance the argument, inter alia, that

the President has properly acted pursuant to authority

18a

granted him by Article 36, UCMJ; that the rights of service

members under the Bill of Rights may be slightly different

from the rights of civilians; and that the President signed

R.C.M. 305 after considering numerous factors relating to

confinement of military personnel (e.g., their pay continues

while confined, they have defense counsel available, their

commanders can make determinations concerning searches

and seizures of property, and their commanders may have

other pressing military responsibilities that limit the ability

to provide a probable cause determination within 48 hours

of confinement). We acknowledge that this logic has a

certain appeal to us (see Judge Cox’s concurring with

modest reservations opinion in United States v. Lopez, 35

M.J. 35 (C.M.A. 1992) and Judge Cook’s dissenting

opinion in the 2-1 decision in Lynch, supra, at 398-399).

That said, we repeat that we feel bound by the precedent

of the Court of Military Appeals discussed above. See

generally Payne v. Tennessee, U.S. , 1118. Ct. 2597,

2610 (1991) (recent comments of the Supreme Court

concerning the doctrine of stare decisis).

In rejecting the views of the minority, we have also

considered the comment in Courtney v. Williams

concerning the applicability of the Bill of Rights to persons

in the military: "the burden of showing that military

conditions require a different rule than that prevailing in

the civilian community is upon the party arguing for a

different rule." Courtney, 1 M.J. at 270. In our opinion, the

Government has not shown in either its brief or oral

argument that military conditions require a different rule

than than that which prevails in the civilian community.

Additionally, we cannot ignore the fact that a "48-hour"

rule has been in effect in the U.S. Army since 24 May

1991, apparently without significant adverse consequences.

See Rexroat, 36 M.J. at 712 n. 5 (message from Army

19a

TJAG to field).

Additionally, we have considered the practical

consequences of our decision with regard to the

transportation, confinement, and processing of absentees at

locations around the country and world far from the

absentees’ duty stations. See United States v. Ballesteros,

29 M.J. 14 (C.M.A. 1989). Although we do not have

answers for every combination and permutation of absentee

problems that may arise, we are confident that the practical

problems associated with the movement of absentees under

guard across the country will normally provide adequate

reasons for rebutting the presumption created by County of

Riverside v. McLaughlin.

VI. EFFECT OF PRECEDENT ON THE

CASE AT BAR

Appellant was arrested by civilian police on 29 March

1991 based on his status as an absentee, and held by them

on behalf of military authorities until 4 April 1991.

Appellant agrees that he was not entitled to credit for

illegal pretrial confinement during that period because

County of Riverside v. McLaughlin was not decided until

13 May 1991. Brief for Holloway at 11 n. 11.

At the 15 October 1991 trial, appellant was awarded

credit for pretrial confinement from 29 March through 4

April 1991, and from 1 August through 14 October 1991

based on United States v. Allen, 17 M.J. 126 (C.M.A.

1984). The judge denied the appellant’s motion for

| If R.C.M. 305 is revised in light of McLaughlin, it would be

useful to have set out those circumstances which would normally rebut

the McLaughlin presumption.

20a

additional credit for illegal confinement during his second

period of pretrial confinement based on the asserted

violation of the holding in County of Riverside v.

McLaughlin. We interpret the judge’s comments on pages

64 and 65 of the record as a finding by him that County of

Riverside v. McLaughlin does not apply in the military.

For the reasons stated above, we find that the judge’s

conclusion was erroneous.

Appellant acknowledges that the Government’s failure to

provide him a timely review after his second period of

confinement did not result from any purposeful action by

the Government. However, he argues that R.C.M. 305(k)

entitles him to three days credit in addition to Allen credit

already given (based on confinement on 1 August 1991,

followed by passage of the 48-hour "deadline" on 4 August

1991, and a magistrate’s hearing on 7 August 1991). Brief

for Holloway at 11. The Government responds that no

additional credit should be given because the Government

followed existing regulations, and R.C.M. 305(k) only

provides remedies for violations of four cited subsections

of R.C.M. 305(k). However, the Government agrees that

if we conclude some type of credit is required for a

violation of the holding in McLaughlin, then day-for-day

administrative credit, similar to the formula offered by

R.C.M. 305(k), is appropriate, and, since appellant has

already served his adjudged confinement, a corresponding

reduction in forfeitures should be awarded. Brief for the

Government at 18.

We specifically find that the bad-conduct discharge

adjudged was appropriate. However, we conclude that

appellant should receive some relief from this Court based

upon the Government’s failure to afford him a prompt

probable cause determination after he was confined on |

2la

August 1991. In our opinion, a day-for-day credit, based

on the formula offered by R.C.M. 305(k), is appropriate.

Since appellant has served his adjudged confinement, we

reassess the sentence on the basis of the error noted, the

entire record, and United States v. Sales, 22 M.J. 305

(C.M.A.1989), and affirm only so much of the sentence as

stated below (n.b., our decretal paragraph directs an

appropriate reduction in forfeitures intended to reduce the

appellant’s forfeitures by the equivalent of approximately

three days of base pay due a service member in pay grade

E-2). See United States v. Strickland, 36 M.J. 569, 571

(A.C.M.R. 1992), and United States v. Keith, 36 M.J. 518,

519 (A.C.M.R. 1992), and cases cited therein.

Except as noted above, we conclude that the findings

and sentence are correct in law and fact.and that no error

prejudicial to the substantial rights of the appellant was

committed. Accordingly, we reassess the sentence and

affirm the findings and only so much of the sentence as

extends to confinement for four months, reduction to pay

grade E-1, a bad-conduct discharge, and forfeiture of $475

pay per month for four months.

Larson, Chief Judge (concurring):

I concur but write separately to urge the Court of

Military Appeals to re-examine its holding in Courtney v.

Williams, 1 M.J. 267 (C.M.A. 1976) that a commanding

officer is not "neutral and detached" for the purpose of

making the initial probable cause determination to justify

pretrial detention under Gerstein v. Pugh, 420 U.S. 103

(1975).

The commanding officer is already required by Article

9, UCMJ, 10 U.S.C. § 809 and Rule for Courts-Martial

. 22a

(R.C.M.) 305(h)(2) to make this very determination before

he orders a person into pretrial detention or reviews the

order of another authorized official. It is a determination

that, by its very nature, demands an objective, rational

assessment of the facts. In fact, I do not believe it is even

possible to make an honest and sound determination of

probable cause in other than a "neutral and detached"

manner. Therefore, it makes little sense for Congress and

the President to trust a commanding officer with this

discretion on the one hand while the appellate courts build

in automatic distrust of his ability to be "neutral and

detached" on the other.'

It makes even less sense when one considers that a

commanding officer is granted similar authority in the

search and seizure arena, one that is also of constitutional

dimension. This authority requires him to, in effect,

balance the needs of the unit against the privacy interest of

the individual by determining that probable cause exists

before authorizing a search. Mil. R. Evid. 315(d). If he

is "neutral and detached" when determining probable cause

to search, why is he not when determining probable cause

to confine?’ Yet, this is the inconsistency that Courtney

' The reason given in the Manual for Courts-Martial Analysis for

R.C.M. 305(h) is to afford the commanding officer an opportunity to

build a record for the reviewing officer under R.C.M. 305(i). While this

may be one objective -- one that could no doubt be accomplished by other

means -- I suspect that the principal goal of R.C.M. 305(h) is to establish

a procedure by which a commanding officer can ensure that the

requirements of Article 9, UCMJ and R.C.M. 304 have been met when

one of his or her personnel is confined.

? In fact, this inherent distrust seems particularly insupportable

when one considers the awesome responsibility for lives and property that

our Nation places on a commanding officer. He or she is required to rise

23a

and R.C.M. 305, in combination, have brought us.

This is not to say that the commanding officer’s

probable cause determinations should not be subject to

review. On a given day, a particular commanding officer

may abandon his "neutral and detached" role and order

pretrial detention without probable cause. The President

has built corrective measures into the Manual for

Courts-Martial to cover this situation -- review by another

officer under R.C.M. 305(i) and by a military judge under

R.C.M. 305(j). However, the existence of those measures,

which provide an excellent means to correct abuses, should

not be read to render the original probable cause

determination by the commanding officer constitutionally

insufficient per se. I agree with Senior Judge Jones in his

dissent where he concludes that the commanding officer’s

prompt initial determination of probable cause, along with

the review safeguards built into the Manual for

Courts-Martial, should satisfy Gerstein and McLaughlin.

Yet, the holding in Courtney that a commanding officer

cannot serve as a "neutral and detached" judicial officer

under Gerstein is settled law (see, e.g., United States v.

Lynch, 13 M.J. 394 (C.M.A. 1985); United States v. Malia,

6 M.J. 65 (C.M.A. 1978)); Manual for Courts-Martial

1984, Analysis, R.C.M. 305(h)), and neither of my

dissenting brothers faces this point squarely or effectively.

Consequently, unless and until the Court of Military

Appeals reconsiders its position in that case, I am bound

by precedent to concur with the majority.

above the emotional fray of the moment and exercise sound rational

judgment in balancing the often conflicting interests of unit and individual

in a myriad of non-legal matters on a daily basis.

24a

Senior Judge Jones, joined by Judges Reed and Lawrence,

dissenting:

The majority opinion mechanically forces a doctrine

arising in a civilian context upon military cases already

imbued with constitutionally sufficient protections provided

by the President. See generally United States v. Lopez, 35

M.J. 35 (C.M.A. 1992) (Cox, J., concurring with modest

reservations). It misapplies a constitutionally based

"48-hour timeline" required of probable cause

determinations to the related but separate military due

process right to the review of the commander’s

determination of the necessity for pretrial confinement.

Having misapplied the law, it is but a quick jump to the

obvious but incorrect conclusion that the seven-day period

envisioned by Rule for Court-Martial 305(i) for review of

that determination is constitutionally infirm.’

Private First Class Jonathan Holloway absented himself

three times over the course of 20 months, for a total time

The culprit behind what I believe to be a misapplication of the

law by the majority and concurring opinions is the specified issue itself.

Since I planted the seed of concern that germinated this specified issue

springing from my panel, | bear a large measure of responsibility for its

creation. But, it is a non sequitur. County of Riverside v. McLaughlin,

__ US. _, 111 S. Ct. 1661 (1991), provides us with a working timeline

for the prompt post-arrest probable cause determination required by

Gerstein v. Pugh, 420 U.S. 103 (1975); it does no more. It well may be

that the military due process principles enunciated in Courtney v.

Williams, | M.J. 267 (C.M.A. 1976), require a foreshortening of

constitutional underpinnings of McLaughlin require corrective action in

the military system.

25a

of absence of approximately 18 months. The most lengthy

absence (nearly 15 months) was terminated by

apprehension. After his third absence, which ended on |

August 1991, PFC Holloway was ordered into pretrial

confinement. A hearing to determine whether he should

remain in pretrial confinement was held on 7 August 1991.

The initial review officer acting under R.C.M. 305(i)

determined that PFC Holloway should remain in

confinement, and he did so until the trial date of 15

October 1991.

At his special court-martial, PFC Holloway asked the

military judge to grant him credit for what he characterized

as an illegal detention period between 3 August and 7

August, although he did not contest the legality of the

initial determination to confine him. He claimed that

County of Riverside v. McLaughlin, U.S. _, 111 S.Ct.

1661 (1991), required the initial review officer hearing

described in R.C.M. 305 to be held within 48 hours of his

confinement, rather than the seven days currently specified

by the rule.

The majority today has held that the initial review

officer hearing must be held within 48 hours of

confinement. Basing its decision on its interpretation of

McLaughlin, and following the lead of the Army Court of

Military Review in United States v. Rexroat, 36 M.J. 708

(A.C.M.R. 1992), the Court today has effectively amended

the Rules for Courts-Martial and thus usurped the

President’s power. Because I believe that McLaughlin

does not require the hastening of the review process that

the Court now mandates, I dissent.

26a

The procedures for reviewing pretrial confinement that

are now embodied in R.C.M. 305 trace their roots to

Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976). See

R.C.M. 305 Analysis, App. 21, MCM, 1984. Courtney, for

its part, was in response to Gerstein v. Pugh, 420 U.S. 103

(1975). See Courtney at 269-70.

Gerstein involved the Florida practice of confining

suspects based only upon a prosecutor’s information.

Under that practice, a person could be arrested without a

warrant and charged by information, and then jailed or

subjected to other restraints pending trial without any

opportunity for a probable cause determination. The state

defended this practice on the ground that the prosecutor’s

decision to file an information was itself a determination

of probable cause that furnished sufficient reason to detain

a defendant pending trial. Gerstein, 420 U.S. at 116-17.

The Court noted that it was possible then for a suspect to

languish "for a substantial period solely on the decision of

a prosecutor.” Jd. at 106.

Two issues were presented for resolution:

[Whether a person arrested and held for

trial on an information is entitled to a

judicial determination of probable cause for

detention, and if so, whether the adversary

hearing ordered by the District Court and

approved by the Court of Appeals is

required by the Constitution.

As noted in Courtney v. Williams, 1 M.J. at 269-70, the

first issue was answered affirmatively:

[A] policeman’s on-the-scene assessment of

probable cause provides legal justification

27a

for arresting a person suspected of crime,

and for a brief period of detention to take

the administrative steps incident to arrest.

Once the suspect is in custody, however, the

reasons that justify dispensing with the

magistrate’s neutral judgment evaporate.

There no longer is any danger that the

suspect will escape or commit further crimes

while the police submit their evidence to a

magistrate. And, while the State’s reasons

for taking summary action subside, the

suspect’s need for a neutral determination of

probable cause increases _ significantly.

Gerstein, 420 U.S. at 113.

Soon after the Supreme Court decided Gerstein, the

Court of Military Appeals had its chance to apply that

decision in Courtney v. Williams. Courtney sought an

extraordinary writ directing his release from pretrial

confinement on an assault charge. Already facing a special

court-martial for two unauthorized absences, Courtney first

sought relief from the trial judge who, having determined

that he had no jurisdiction because the offense had not

been referred to the special court-martial, denied him

review of the pretrial confinement. Courtney, 1 M.J. at

269. Although the Uniform Code of Military Justice

provided that a person ordering confinement of a

servicemember had to make an initial probable cause

determination, there was no requirement for any further

review of that determination. /d. at 270.

As Chief Judge Fletcher made clear in Courtney, the

Gerstein decision requires only that a neutral and detached

magistrate determine whether probable cause exists to

detain a person. Such a determination that probable cause

28a

exists, he explains, only confirms that a person could be

detained, not that he should be detained. Assuming that an

accused could be detained, the bail procedures in the

civilian community would then become applicable. As

noted in United States v. Salerno, 481 U.S. 739, 766

(1987) (Marshall, J. dissenting), "the finding of probable

cause conveys power to try, and the power to try imports

of necessity the power to assure that the processes of

justice will not be evaded or obstructed."

Although finding that Gerstein itself required no more,

the Court of Military Appeals recognized that because bail

procedures in the military were absent, some further due

process right was necessary.”

After the conclusion is reached that one

could be detained because of the existence

of probable cause, then the next question --

whether he should be detained -- is all

important. A determination to detain has

far-reaching consequences, both to the

individual and to the potential fairness of the

military justice system. [Footnote omitted].

Courtney, 1 M.J. at 271.

Discussing Gerstein, the U.S. Court of Appeals for the Second

Circuit noted, "it would be ironic if a decision rendered to assure a

suspect the protection of a neutral magistrate’s determination of probable

cause after ‘a brief period of detention to take the administrative steps

incident to arrest’ became the basis for extending that detention for weeks

or months after the probable cause determination has been made." United

States v. Salerno, 794 F.2d 64 (1986), rev’d, 481 U.S. 739 (1987). As

will be discussed, this concern for extended pretrial confinement in the

military is addressed by Rule for Courts-Martial 305.

29a

At the time of the Courtney decision, such a due process

concern was warranted. Fireman Courtney was afforded

no opportunity to contest or otherwise respond to the

convening authority’s decision to incarcerate him. The

Uniform Code of Military Justice provided no procedure

for reviewing the probable cause determination that is

made by the person ordering arrest or confinement.

While the [Code] provides that probable

cause is needed to order arrest or

confinement and while it enumerates those

persons authorized to arrest or confine, it

does not go that next step that is mandated

by the Constitution. Although _ the

confinement officer must report confinement

to the confinee’s commanding officer within

24 hours after confinement, the Code does

not require the commanding officer to take

further action. And, the — general

court-martial convening authority need only

review the confinement every 30 days.

[Footnotes omitted].

Courtney, 1 M.J. at 270.

Thus the Courtney court took the Gerstein decision one

step further to fill the military due process void resulting

from the lack of bail procedures.’

After recognizing the nonadversarial nature of the probable cause

hearing required in order to detain an arrested person pending further

proceedings, Chief Judge Fletcher acknowledged "the additional question

before a military magistrate of the propriety of confinement,” United

States v. Malia, 6 M.J. 65, 67 (C.M.A. 1978), but concluded that "the

30a

We believe, then, that a neutral and detached

magistrate must decide more than the

probable cause question. A magistrate must

decide if a person could be detained and if

he should be detained. [Footnote omitted].

Courtney at 271.

Appellant points us to the Court of Military Appeals’

decisions in United States v. Malia, 6 M.J. 65 (C.M.A.

1978) and United States v. Lynch, 13 M.J. 394 (C.M.A.

1982) for the principle that the commander qua convening

authority is precluded from making the probable cause

determination required by Gerstein.‘ We disagree.

initial consideration of pretrial confinement must be immediate and does

not necessitate an adversary proceeding." /d.

As discussed above, the Court of Military Appeals has concluded

that a court-martial convening authority is disqualified from making the

“pretrial confinement decision," Lynch, 13 M.J. at 397, (as contrasted to

the probable cause determination required by Gerstein). This

pronouncement originates from the Court’s earlier decisions defining the

Codal role of the staff judge advocate. The pretrial obligations of the

staff judge advocate "inextricably linked [him] to the command function

of policing and law enforcement in the military community" and thus

placed him in the posture of a prosecutor. Lynch, 13 M.J. at 396; United

States v. Hardin, 7 M.J. 399 (C.M.A. 1979). As such, the institutional

position of the staff judge advocate was inconsistent with the neutrality

and detachment of a pretrial confinement magistrate; moreover, that same

institutional position disqualified him as the source of advice to the

commander in the latter’s pretrial confinement decision. Thus, in Lynch

an Air Force provision permitting a staff judge advocate to hold the

pretrial confinement hearing and then make a recommendation to the

special court-martial convening authority as to whether an accused should

remain in confinement was found constitutionally deficient.

3la

Someone other than a judge or lawyer may certainly serve

as the "judicial officer" envisioned by the Fourth

Amendment so long as he is neutral and detached, and

capable of determining whether probable cause exists for

the requested arrest or search. No minimal legal or

educational qualifications are constitutionally required.

Shadwick v. City of Tampa, 407 U.S. 345 (1972). Within

military practice an impartial commander may certainly

authorize a search based on probable cause. M.R.E.

315(d)(1) and (f). We require, however, that one in such

a position be neutral and detached in order to impose an

orderly process in which that authorizing official is

The reasoning is less clear as to why a commander using his

independent judgment, not operating under such a regulatory scheme

requiring the advice of the staff judge advocate, would be disqualified

from making the determination whether an accused remains in pretrial

confinement. Notwithstanding the prosecutorial bent of the staff judge

advocate as discussed in Hardin, he evaluates an accused’s guilt for the

purposes of his Article 34(a), UCMJ, advice in terms of whether a charge

"is warranted by evidence indicated in the [Article 32] report of

investigation." This quantum of evidence is left unspecified in both the

Uniform Code of Military Justice and the Manual for Courts-Martial (both

1969 and 1984 versions), but the Court of Military Appeals has stated in

United States v. Engle, 1 M.J. 387, 389, n. 4, that “it is that degree of

proof which would convince a reasonable, prudent person there is

probable cause to believe a crime was committed and the accused

committed it. See Gerstein v. Pugh, 420 U.S. 103 (1975)."

In other words, although the staff judge advocate may be institutionally

precluded from making or giving advice on the determination to continue,

pretrial confinement, he is not precluded from making the probable cause

determination that is the subject of Gerstein. Similarly, although the

convening authority exercises his pretrial Codal functions in a

prosecutorial context, Hardin at 404, if he finds or is advised by a judge

advocate that there are reasonable grounds to believe that an offense

triable by court-martial has been committed and that the accused

committed it, and that the preferred specification alleges an offense, he

may then refer the charge to trial. Rule for Courts-Martial 601(d)(1).

32a

prevented from representing a law enforcement interest

while at the same time authorizing searches and seizures.

See generally Lopez, 35 M.J. 35. The requirement in the

Manual that a commander be impartial derives from United

States v. Ezell, 6 M.J. 307 (C.M.A. 1979) and is significant

because it recognizes that there is a difference between a

commander with his or her various roles and a civilian

magistrate. Lopez, 35 M.J. at 41.

The Court’s concern in those earlier cases of Malia and

Lynch was with the commander as the individual who not

only made the pretrial confinement decision, but by default

Or pursuant to regulation, ultimately determined the

legitimacy or justification for pretrial confinement in a

given case. As observed in United States v. Rexroat, 36

M.J. at 711 n.1, in most military situations the offending

servicemember is apprehended by shore patrol or military

police and returned to control of his commander. The

commander then determines the charges and the need for

pretrial confinement. Accordingly, there is a probable

cause determination for charges before confinement is

authorized.

Malia, in pertinent part, held that the confining

commander may not overrule the magistrate’s decision to

release, relying on the similar reasoning of United States

v. Ware, 1 M.J. 282 (C.M.A. 1976) (under Article 62(a),

UCMSJ, a commander could not reverse the finding of a

trial judge but could only return the record to the court for

reconsideration of the ruling). In Lynch, the Court found

an Air Force procedure to be infirm where the special

court-martial convening authority was called upon to make

the "pretrial confinement decision" because it could not be

reconciled with the constitutional requirement that "the

detached judgment of a neutral magistrate" must determine

33a

whether an accused remains in pretrial confinement. Lynch

at 397 (Everett, C.J. concurring)(emphasis supplied).

Whether the commander qua convening authority continues

to be disqualified is unclear. "Although a commanding

officer cannot be equated to a magistrate, he -- like a

magistrate -- must be ‘neutral and impartial’ in performing

some of his responsibilities. This expectation applies when

the commander is issuing search authorizations; and,

likewise, when ordering a suspect into confinement, he

must act in a neutral capacity." United States v. Sharrock,

32 M.J. 326, 333 (C.M.A. 1991) (Everett, S.J., concurring

in part and dissenting in part).

Ill

The significant aspect of Gerstein overlooked by the

majority is that the Court inferentially distinguished the

initial confinement resulting from arrest from any

subsequent determination that confinement should be

continued, specifically, bail determinations. See Gerstein,

420 U.S. at 124 (the probable cause determination may be

incorporated into the procedure for setting bail or fixing

other conditions of pretrial release). Cf id. at 114 ("even

pretrial release may be accompanied by burdensome

conditions that effect a significant restraint of liberty

[citing Bail Act]). The decision to continue pretrial

confinement simply was not at issue in McLaughlin.

McLaughlin is concerned solely with the need for a

prompt (i.e., 48-hour) determination by an impartial

authority of the probable cause to arrest that has led to an

individual’s being retained in custody. The military

already has such a procedure. All would agree that the

commander, as in the case of all officers, may direct

pretrial confinement. R.C.M. 304(b). But before he may

do so, he must conclude that an offense triable by

iia

34a

court-martial has been committed and that the accused

committed that offense, i.e., the probable cause

determination required by Gerstein. R.C.M. 305(d)(1) and

(2). Cf Lopez. Only then may he determine whether

pretrial confinement is warranted by the circumstances.

R.C.M. 304(d)(3).

What the majority purports to place at issue here is the

timing of the subsequent decision as to whether the

member shouid continue to be confined or be released, the

counterpart of the civilian bail setting procedures.

Recognizing the needs of the state in the orderly

administration of justice, Gerstein permitted the states to

delay the probable cause determination until some

subsequent stage in the process, e.g., either the suspect’s

first appearance before a judicial officer, or arraignment,

or other session for the purpose of setting bail or

conditions of pretrial release. 420 U.S. at 124-25. But

such a determination had to be "promptly after arrest," id.

at 125, a promptness now defined as 48 hours.

Through the implementation of R.C.M. 305, the

President has elected not to defer the probable cause

determination mandated by Gerstein. Instead, it is made

prior to the decision to confine. The commander, himself,

is normally the individual to make that initial determination

to confine and there is no reason in law or policy that he

should not do so. See Sharrock, 32 M.J. at 334 (Cox, J.,

concurring in part and concurring in the result) (pretrial

confinement [is] but an extreme form of apprehension). "It

must be remembered that a commanding officer has the

duty to maintain law and order and to protect the welfare,

health, well-being, and safety of the command." Lopez, 35

M.J. at 44 (Cox, J., concurring). If another has directed

that confinement, the commander is required to be notified

35a

within 24-hours. R.C.M. 305(h). Even in the somewhat

unusual event that he is not the individual who initially

made the probable cause determination and decision that

confinement was warranted, the commander must, within

72-hours after receiving notice of confinement, make his

own independent decision as to whether pretrial

confinement should continue. R.C.M. 305(h)(2)(A). The

commander must then direct the prisoner’s release from

pretrial confinement unless, again, he concludes that there

is probable cause for the apprehension of the accused and

that continued confinement is necessary. R.C.M.

305(h)\(2)(B). An extensive list of factors is provided to

focus the commander’s consideration of those issues. /d.

See also Discussion. The commander must then prepare a

written memorandum stating the reasons for his

conclusions of probable cause and the need for

confinement. R.C.M. 305(h) (2)(C). That memorandum

is then provided to the reviewing officer, a neutral and

detached officer as required by R.C.M. 305(i), who within

seven days must review the commander’s determination of

probable cause and his determination that pretrial

confinement is necessary.”

Following confinement, an accused shall be informed promptly

of the charges against him, his right to remain silent, and his right to

retain civilian counsel or request assignment of military counsel. If

requested, military counsel are to be provided to the prisoner before the

review contemplated under R.C.M. 305(i). R.C.M. 305(e), (f). The

prisoner and his counsel shall be allowed to appear before the reviewing

officer and make a statement, if practicable. R.C.M. 305(i)(3)(A). The

reviewing officer’s conclusions, including the factual findings on which

they are based, shall be set forth in a written memorandum. R.C.M.

305(i)(6). The prisoner may petition the review officer for

reconsideration of his decision to confine based upon information not

previously considered. R.C.M. 305(i(7). Upon referral of charges, the

military judge shall review the propriety of pretrial confinement upon

motion for appropriate relief. R.C.M. 305(j). Finally, the prisoner is

rig

36a

Where the commander first undertakes the determination

required by R.C.M. 305(d) and (h) as a neutral and

detached official, and concludes that the test for probable

cause is met, he has done all that Gerstein and McLaughlin

require. He then, appropriately, may make the initial

determination as to whether pretrial confinement is

necessary, R.C.M. 305(d)(3) and (h)(2)(B), by virtue of his

responsibility to protect the good order and safety of his

command.

[T]he real initial decision for pretrial

confinement [lies] with the prisoner’s

commander. Although the immediate

commander may not be a neutral and

detached official for pretrial confinement

purposes,° it is appropriate to give this

officer the initial decision on pretrial

confinement, so that the command

implications of this determination may be

fully considered and developed for further

review. This will enable the commander,

who is in the best position to assess the

predictive elements of the _ pretrial

confinement decision, including not only the

prisoner’s likely behavior, but also the

credited day for day against his adjudged confinement for each day of

pretrial confinement served as a result of an abuse of discretion or of a

failure to comply with subsections (f), (h), or (i) of the rule. Such credit

is in addition to any credit given under United States v. Allen, 17 M.J.

126 (C.M.A. 1984).

® As discussed earlier, "for pretrial confinement purposes" in this

context means only that the commander is disqualified by decisional law

from serving as the final authority on the question of the need or

justification, and ultimately, the legitimacy of pretrial confinement.

37a

impact of release or confinement on mission

performance, to make a record of such

factors for the initial review. (Citations

omitted).

Rule for Courts-Martial 305(h), Analysis, A21-15, MCM,

1984.

Only where the commander is not the individual initially

directing confinement, and thus operating under the

72-hour obligations imposed by R.C.M. 305(h), are the

standards of McLaughlin arguably not met. In such cases,

if one were to assume that the President erred by 24 hours

in assessing the liberty interest of the individual in the

context of the practical realities of military society, then

one would have to conclude that the commander’s decision

itself required under that rule could occur no later than 48

hours after confinement has been imposed. No

requirement exists, however, that should then compel the

commander to submit the written memorandum supporting

his determination, R.C.M. 305(h)(2)(C), any earlier than

existing practice.

The federal system, unlike the military, has a bail

procedure, contained in the Bail Reform Act of 1984. See

18 U.S.C. §§ 3141 et seg. (1987 Supp. V). In upholding

that Act’s provisions permitting pretrial detention on the

basis of future dangerousness, the Supreme Court has

engaged in a weighing process, balancing the

Government’s interest in preventing crime by arrestees

38a

against the individual’s strong interest in liberty.’

We do not minimize the importance and

fundamental nature of this right. But, as our

cases hold, this right may, in circumstances

where the government’s interest is

sufficiently weighty, be subordinated to the

greater needs of society. We think that

Congress’ careful delineation of the

circumstances under which detention will be

permitted satisfies this standard.

Salerno, 481 U.S. at 750-51.

In concluding that the Act was not facially invalid under

the Due Process Clause of the Fifth Amendment, the

Court, after identifying the substantial procedural

protections’ afforded an individual under the Act, noted

7 As recognized by the Supreme Court in Gerstein, 420 U.S. at

114, “pretrial confinement may imperil the suspect’s job, interrupt his

source of income, and impair his family relationships.” We hasten to point

out that the fiscal concerns of the Court would be diminished in the

military context. A pretrial confinee continues as a fully compensated

member of the service to and through trial and until the convening

authority approved a sentence affecting an accused’s financial state. We

also have no hesitation in commending the relative safe and secure

environments of our Navy brigs and other military confinement facilities

in contrast to their civilian counterparts. Lastly, we note that the liberty

interest of a sailor or marine, in comparison to his civilian brother or

sister, is qualified by the very nature of his or her military duties. Cf

Schall v. Martin, 467 U.S. 253, 264 (1984).

§ Detainees have a right to counsel at the detention hearing. 18

U.S.C. § 3142(f). They may testify in their own behalf, present

information by proffer or otherwise, and cross-examine witnesses who

appear at the hearing. Id. The judicial officer charged with the

39a

that those protections "far exceeded what we found

necessary to effect limited postarrest detention in Gerstein

v. Pugh." In other words, these heightened procedures were

sufficient to justify the state’s interest in further confining

an accused. This is precisely what the President has

accomplished with the promulgation of R.C.M. 304 and

305. A continuum of rights is thus provided the pretrial

confinee in both military and civilian settings, from the

probable cause assessment of the arrest/apprehension made

by the neutral and detached judicial officer (civilian

magistrate and commander) to the bail proceedings of the

federal system and the confinement review procedures of

the military.

Under the Bail Reform Act,

The hearing shall be held immediately upon

the person’s first appearance before the

judicial officer unless that person, or the

attorney for the Government, seeks a

continuance. Except for good cause, a

continuance on motion of the person may

not exceed five days, and a continuance on

motion of the attorney for the Government

may not exceed three days. During a

responsibility of determining the appropriateness of detention is guided

by statutorily enumerated factors, which include the nature and the

circumstances of the charges, the weight of the evidence, the history and

characteristics of the putative offender, and the danger to the community.

Sec. 3142(g). The government must prove its cause by clear and

convincing evidence. Sec. 3142(f). Finally, the judicial officer must

include written findings of fact and a written statement of reasons for a

decision to detain. Sec. 3142(i). The Act’s review provisions, Sec.

3145(c), provide for immediate appellate review of the detention decision.

Salerno, 481 U.S. at 751-52.

_o——iiaeiaai i ie

40a

continuance, such person shall be detained.

. The person may be detained pending

completion of the hearing.

18 U.S.C. § 3142(f\(emphasis supplied).

In the only Supreme Court case to review the timing of

the hearing, United States v. Montalvo-Murillo, 495 U.S.

711, 1108S. Ct. 2072 (1990), the granted issue was whether

a magistrate’s own motion to postpone the hearing, which

resulted in the defendant’s being held over ten days before

his first appearance before the magistrate, warranted the

defendant’s release. The Court noted that a prompt

hearing is necessary, and that the Act’s time limitations

must be followed with care and precision. /d. at 2077.

Montalvo-Murillo argued that because the statute required

a hearing at a specific event, and did not permit the

continuance the magistrate took, the Government was

barred from seeking pretrial detention. /d. at 2078. The

Court rejected that argument, stating that it did not

agree that we should, or can, invent a

remedy to satisfy some perceived need to

coerce the courts and the Government into

complying with the statutory time limits.

Id. at 2079.

The Court’s declination to craft a remedy for delay in a

case involving the Bail Reform Act supports the position

that the well delineated time limits and procedures of

R.C.M. 304 and 305 are also constitutionally valid. Not

surprisingly, in the only post-McLaughlin case we have

found that addresses the holding in Montalvo-Murillo, there

is no suggestion that the time lines of the Bail Reform Act,

¥ . ’

4la

or even their breach, would be violative of the "48-hour"

rule. United States v. Gotti, 776 F. Supp. 666 (E.D.N.Y.

1991).

The American Bar Association Standards, Pretrial

Release Sec. 10-4.2. (Rev. 1985) lends additional support

for such a position. A preceding section, 10-4.1, provides

that a defendant should be taken before a judicial officer

without unnecessary delay, which except during nighttime,

is defined as within six hours of arrest. Notwithstanding

such an interest in a prompt first appearance exceeding

even that of McLaughlin, Standard 10-4.2 was amended in

1985 to adopt procedures for the imposition of preventive

detention. Analysis, Standard 10.4.2, "Nature of First

Appearance.” Under the change, if, at the first appearance,

the prosecuting attorney files a written notice of intent to

seek preventive detention, a judicial officer should be

authorized, after finding probable cause to believe that the

defendant has committed a predicate felony for preventive

detention as alleged in the charging document, to order

provisional preventive detention for a period that may not

exceed three calendar days. “This meets the constitutional

requirements laid down by the Supreme Court in Gerstein

v. Pugh, 420 U.S. 103 (1975)." Id. In other words,

without more, upon motion by the Government, an accused

may be held an additional three days so long as the judicial

officer has reached the probable cause determination

required by Gerstein; no consideration of the need for the

initial pretrial confinement or even continued pretrial

restraint is even addressed.

In conclusion, “there is no single preferred pretrial

procedure, and the nature of the probable cause

42a

determination usually will be shaped to accord with a

State’s pretrial procedure viewed as a whole." Gerstein,

420 U.S. at 123. From appellant’s point of view, a

determination of the need for continued pretrial

confinement at the 48-hour, rather than the seven-day,

mark, is certainly preferable,” "but our federal system

warns of converting desirable practice into constitutional

commandment." Shadwick, 407 U.S. at 353. The President

has created a two-tiered system of protection for pretrial

detainees. In doing so, he has implemented Congressional

will (see 10 U.S.C. §§ 809 and 810) and complied with the

mandates of both the Court of Military Appeals and the

United States Supreme Court. Because I believe the issue

in McLaughlin to be one of probable cause to arrest

leading to initial pretrial detention, and not one of

continued pretrial confinement following the "brief period

of detention to take the administrative steps incident to

arrest,"'° I dissent.

Judge Lawrence, joined by Senior Judge Orr, dissenting:

? Appellate defense counsel within their brief and at oral argument

take a position based on policy considerations that implementation of a

"48-hour rule” will not prove impracticable. We do not agree. By

example, they suggest that the requirement for a R.C.M. 305 hearing is

not triggered until a geographically displaced servicemember is returned

to his command and ordered into confinement: such is not clear to us.

Would not the military member be entitled to a McLaughlin-dictated

hearing when confined in a civilian jail awaiting pickup by the military?

Cf United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (accused entitled

to sentence credit for pretrial confinement). As an accused were moved

between military confinement facilities en route to his parent command,

would not such a hearing be required?

Gerstein, 420 U.S. at 114.

43a

I dissent from the majority’s holding that County of

Riverside v. McLaughlin, _ U.S. _, 111 S. Ct. 1661

(1991), mandates a change in Rule for Courts-Martial

(R.C.M.) 305 on the fundamental ground that McLaughlin

is not binding precedent concerning the issue before us. |

would hold that the President’s rule contained in R.C.M.

305, promulgated pursuant to congressional authority in

Article 36, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 836, does not violate the Fourth Amendment to

the U.S. Constitution as that amendment applies to the

military services.

Federal civilian precedent regarding the Fourth

Amendment to the U.S. Constitution has never been

applied so mechanically to military society as the majority

does in this case without any extended discussion of the

obviously differing balances between societal needs for

safety and order and individual liberty interests that divide

the two societies. R.C.M. 305 is based on years of

military experience with several military magistrate

programs. It results from a balance in military society

between the government’s interest to ensure tranquility and

public safety and the individual’s interest in personal

freedom that is radically and demonstrably different from

the balance struck by the Supreme Court in McLaughlin.

The majority err because they apply McLaughlin to

military practice and procedure without considering the

essential facts and factors that generated the holding of

McLaughlin. The rationales for both the McLaughlin

majority’s 48-hour presumption and the dissent’s 24-hour

rule simply do not pertain logically to military society in

general and the facts of this case in particular.

This Court’s analysis should focus on the pertinent

“i

44a

constitutional, statutory, and regulatory provisions that bear

on this issue and the marked realities of military necessity

and life that vary immensely from those in civilian society.

The majority simply ignore these complexities and

summarily conclude that because in 1976 the Court of

Military Appeals in Courtney v. Williams, 1 M.J. 267

(C.M.A. 1976), mechanically applied Gerstein v. Pugh,

420 U.S. 103 (1975), to military practice, we are bound to

do likewise with McLaughlin in 1993. To me, the

majority provide no compelling rationale for overturning

a rule which reflects military exigencies and the unique

aspects of military society and organization and was

promulgated by the President, pursuant to unquestionable

constitutional authority, based on extensive experience and

data.

I. GENERAL APPLICATION OF

FOURTH AMENDMENT PRINCIPLES TO

MILITARY JUSTICE

The Supreme Court "has long recognized that the

military society is, by necessity, a specialized society

separate from civilian society." Parker v. Levy, 417 U.S.

733, 743 (1974); see also Orloff v. Willoughby, 345 U.S.

83, 94 (1953) ("The military constitutes a specialized

community governed by a separate discipline from that of

the civilian."). Because of this special status, the Supreme

Court has "also recognized that the military has, again by

necessity, developed laws and traditions of its own during

its long history." Levy, 417 U.S. at 473. This "military law

. .. 1S ajurisprudence which exists separate and apart from

the law which governs in our federal judicial

establishment." Burns v. Wilson, 346 U.S. 137, 140 (1953),

quoted in Schlesinger v. Councilman, 420 U.S. 738, 746

(1975). The “laws and traditions governing [military]

45a

discipline have a long history; but they are founded on

unique military exigencies as powerful now as in the past.

Their contemporary vitality repeatedly has been recognized

by Congress." Councilman, .420 U.S. at 757.

Thus, in general, differences between civilian and

military law and procedure are not only constitutionally

permissible, they are expected to exist. Although the

Supreme Court has remanded cases to the Court of

Military Appeals with direction to consider a cited

Supreme Court decision, see United States v. Lopez, 35

M.J. 35, 48 (Sullivan, C.J., concurring in the result), the

Supreme Court has never presumed the application of

civilian law to the military; certainly no precedent even

Suggests that a majority of that Court presume the

application of its Fourth Amendment holdings to military

society.

In 1960, after considerable scholarly debate, the Court

of Military Appeals nonetheless declared that the

"protections in the Bill of Rights, except those which are

expressly or by necessary implication inapplicable, are

available to members of our armed forces." United States

v. Jacoby, 11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47

(1960); see United States v. Ezell, 6 M.J. 307, 313 (C.M.A.

1979). By its terms, however, the Fourth Amendment bears

only remotely on military society. It begins by recognizing

the right of the people to be secure in their persons,

houses, papers, and effects, yet clearly in the late 1700’s

the "people" referred to did not include soldiers or sailors

in active federal service. Soldiers and sailors had no such

right, as the drafters of the amendment were well aware.

Further, the amendment prohibits the issuance of warrants

without probable cause. Military authorities did not then

nor do they now issue warrants to search or seize persons

Pie yk Pt.

BE iP ak a Side ach

—sa

46a

or property in the military services. Searches and seizures

in general, and confinement of service personnel in

particular, were the sole prerogative of the military

commander for the first 185 years of our existence as a

sovereign nation. That commander authorized searches

and seizures and ordered service personnel into, as well as

released from, confinement. Not until the UCMJ did

military statutory law and practice even require that the

order for pretrial confinement be based on probable cause.

The very language of the Fourth Amendment seems

unrelated to military traditions, practice, and law, and

military appellate decisions since Jacoby demonstrate how

poorly Fourth Amendment principles taken from civilian

life fit military requirements and interests.

After more than two decades of experience in trying to

apply Fourth Amendment principles to military society, the

Court of Military Appeals acknowledged that the "Fourth

Amendment does not take into account the exigencies of

military necessity and unique conditions that may exist in

military society." United States v. Middleton, 10 M.J. 123,

127 (C.M.A. 1981). Certainly in the realm of search and

seizure, the Court has recognized "four major variances

from conventional Fourth Amendment doctrine," that is,

____there is no military requirement that a search authorization

be made by ajudicial officer, the search authorization need

not be in writing, the authorization need not be supported

by an oath or affirmation, and pervasive military

inspections may be ordered without probable cause or a

warrant. See Lopez, 35 M.J. at 45 (Cox, J., concurring). |

Indeed, military exigencies are so pronounced that it is |

now very doubtful that any presumption that Supreme

Court Fourth Amendment precedent applies to military law

and practice continues to exist. See Lopez, 35 M.J. at 41

n.2 (plurality opinion), 42-43 (Cox, J., concurring).

P Pee ’ : . }

47a

Those military exigencies and unique conditions in the

military to which the Middleton Court referred "result from

‘the primary business of armies and navies to fight or be

ready to fight wars should the occasion arise.’ Lopez, 35

M.J. at 41 (quoting United States ex. rel. Toth v. Quarles,

350 U.S. 11, 17 (1955)). The nature of this business

requires a highly trained force comprised of motivated and

disciplined persons who generally must be willing to

forego their personal interests for those of the force and the

unit. A key component in ensuring such a force is labeled

the maintenance of good order and discipline. Crime,

disorder, or insubordination that civil society may accept

as a consequence of personal freedom is intolerable in

military society. Criminals, the undisciplined, and the

insubordinate must be removed swiftly and effectively

from the unit and close proximity to their peers, otherwise

their example will adversely affect unit cohesion and infect

others who but for their example will generally perform

acceptably. Thus, military society "must insist upon a

respect for duty and a discipline without counterpart in

civilian life." Councilman, 420 U.S. at 757.

No Fourth Amendment balancing between governmental

interests and those of the ordinary citizen by a civilian

court takes into account this recognized, exceptional

interest of the military commander who is responsible for

the training, discipline, and military effectiveness of his

force and therefore must possess an authority over the

freedom of-servicemembers that is virtually without

parallel in civilian society. Indeed, one appellate judge,

analyzing generally military decisions concerning search

and seizure, observed:

The essence of my disagreement with the

48a

way search and seizure law applies to

military society is that we have tried to

adopt rules that superimpose into the

military various Fourth Amendment concepts

fashioned by the Supreme Court for civilian

society. These rules generally have no

applicability to the relationship of a

commander to members of his command. .

United States v. Morris, 28 M.J. 8, 18 (C.M.A. 1989)

(Cox, J., concurring in part and dissenting in part)

(emphasis added).

Certainly, if given a meaningful choice, few

servicemembers would choose significant restrictions on

their personal liberty. Reasonable, dedicated

servicemembers recognize, however, that a necessary result

of military exigencies is that their rights "must perforce be

conditioned to meet certain overriding demands of

discipline and duty." Levy, 417 U.S. at 744. One right that

is severely limited by necessity is the right to privacy. In

virtually every military work or living environment,

military inspections are routine, expected, and generally

thorough. Life in barracks, on ships, in the field, and on

controlled military bases is collective, and the actions of

individuals are so interdependent that the right to privacy

is truncated indeed. Soldiers and sailors regularly live,

sleep, bathe, and perform personal bodily functions in close

proximity under conditions that most civilians would find

embarrassing if not demeaning.

Similarly, the right of freedom of movement in the

military, the liberty to go where a person wishes when he

or she wishes, is a faint shadow of that enjoyed in civilian

49a

life. Servicemembers are not entitled to regular working

hours and may be ordered to stand watches or work or

train at night or on weekends. Routinely, required duties

take them away from their immediate families, often for

weeks or months. The servicemember who receives an

order affecting his freedom of movement is not free to

decline it by quitting his job no matter how dangerous,

unpleasant, or inconvenient compliance may be. So long

as the order is related to a military duty, in general,

servicemembers must be where they are ordered for so

long as they are ordered -- even a "dress code" is

prescribed. These restraints on personal freedom would be

intolerable to the ordinary citizen, yet they are accepted as

a normal incident of military service to those who

understand their necessity.

Il. PROTECTION OF RIGHTS OF

PRETRIAL CONFINEES BY

CONGRESS AND THE PRESIDENT

Congress, the branch of government primarily charged

with balancing the needs of the commander against those

of the individual servicemember, has considered the

foregoing, see A Bill to Unify, Consolidate, Revise, and

Codify the Articles of War, the Articles for the

Government of the Navy, and the Disciplinary Laws of the

Coast Guard, and to Enact and Establish a Uniform Code

of Military Justice: Hearings on H.R. 2498 Before a

Subcommittee of the Committee on Armed Forces, House

of Representatives, 81st Cong., Ist Sess. 901-23 (1949)

{hereinafter House Hearings],. and has enacted legislation

that as much as is practicable protects the liberty interests

of a servicemember who is accused of an offense. As

early as 1920, Congress amended the Articles of War so

that pretrial confinement was no longer mandatory for

50a

enlisted persons awaiting court-martial. By the 1940’s,

both the Army and the Navy had in practice adopted a

probable cause standard to permit confinement of an

accused prior to trial; this standard became law in 1950

with the passage of Article 9(d), UCMJ. Article 10

embodied previous Army and Navy provisions requiring

immediate steps to inform a pretrial confinee of the offense

for which he is confined and "to try him or to dismiss the

charges and release him." Congress intended that Article 10

be enforced through Article 98 which makes it a

punishable offense to unnecessarily delay the disposition of

any case of a servicemember accused of violating the

UCMJ. House Hearings at 903. Article 11 continued

previous provisions requiring that within 24 hours of the

imposition of pretrial confinement the commanding officer

shall be notified of the name of the prisoner, the offense,

and the person ordering confinement. Finally, Article 13

extended reforms in pretrial confinement contained in the

1948 redraft of Article of War 16 by remedying previous

abuses of pretrial confinement. Article 13 prohibited the

punishment of any pretrial confinee for the offenses of

which he is confined and further mandated that the

conditions of confinement be no more rigorous than the

circumstances required to ensure his presence for trial.

Even before the present Manual for Courts-Martial, the

President, as Commander-in-Chief and acting under his

Article 36 rule-making authority, had enacted regulations

concerning the imposition of pretrial confinement. The

1951 Manual for Courts-Martial made clear that "[n]o

restraint need be imposed in cases: involving minor

offenses." Manual for Courts-Martial, United States

(MCM), 1951, 918b. The 1951 MCM also permitted

pretrial confinement for two reasons only: (1) to ensure the

accused’s presence at trial, and (2) because of the

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seriousness of the offense. MCM, 1951, 420c. The 1969

MCM granted pretrial confinees additional protection by

prohibiting punitive labor, punitive duty or training, and

special uniforms for pretrial confinees that are prescribed

for post-trial confinees. MCM, 1969(Rev.), 418b(3).

Thus, when Courtney was decided, it was clear that both

Congress and the President had examined the subject of

imposition of pretrial confinement in the military services

in great depth. |

Il. PRETRIAL CONFINEMENT

POST-COURTNEY TO R.C.M. 305

In 1975, the Supreme Court decided Gerstein v. Pugh,

420 U.S. 103 (1975). In 1976, in Courtney v. Williams, |

M.J. 267 (C.M.A. 1976), the Court of Military Appeals

summarily applied the Gerstein holding to military practice

and procedure. It noted that although the commanding

officer must receive a report within 24 hours after

confinement, "the Code does not require the commanding

officer to take further action. And, the general

court-martial convening authority need only review the

confinement every 30 days." Courtney, | M.J. at 270.

Obviously, that perceived omission in the UCMJ was

remedied in R.C.M. 305 by requiring the commanding

officer to make a probable cause determination promptly

after being informed that another authority had ordered an

accused into pretrial confinement. The Court went on to

require that a "neutral and detached magistrate" make a

probable cause determination and a decision whether -

pretrial confinement should be continued. This latter

requirement of course involves information that generally

is unrelated to the existence of probable cause and which

may be obtainable only from sources located away from

the situs of the alleged offense or the place of confinement.

52a

In response to Courtney, each military service and the

Coast Guard initiated a military magistrate program. See

generally Jack E. Owen, A Hard Look at the Military

Magistrate Pretrial Confinement Hearing: Gerstein and

Courtney Revisited, 88 Mil. L. Rev. 3, 40-47 (1980)

(listing time requirements for initial review and probable

cause hearings under service regulations in effect the first

few years after Courtney and arguing for uniformity

between the services). It is important to review these

programs briefly because the combined experience gained

through their operation throughout the world was used by

the Working Group of the Joint-Service Committee and the

Code Committee in drafting R.C.M. 305.

The Army military magistrate program was contained in

Army Regulation (AR) 27-10. The person ordering

pretrial confinement was required to forward information

forming the basis for the decision to confine, along with a

checklist, to the military magistrate, a judge advocate, who

was required to review all documents and interview the

confinee within 7 days after initiation of pretrial

confinement. After this initial probable cause review and

determination that continued pretrial confinement was

justified, the magistrate was required to review each case

every 2 weeks.

The program in the Naval Service was set forth in

Secretary of the Navy Notice 5810 and Secretary of the

Navy Instruction 1640.10. In the Navy, the magistrate had

to be a judge advocate; in the Marine Corps, he gid not.

Within 72 hours after ordering pretrial! confinement, the

confining authority was required to forward detailed

information to the magistrate to support the probable cause

determination and the necessity for continued pretrial

53a

confinement. After receipt of this information, the

magistrate was to hold an informal hearing "promptly" to

review the probable cause determination and to decide

whether continued confinement was justified. In cases of

pretrial confinement arising at sea, the commanding officer

was required to transfer the confinee to a _ shore

confinement facility as soon as practicable. The detailed

information described above to constitute probable cause

and justify continued confinement had to be forwarded

within 24 hours after transfer to the shore facility.

Thereafter, procedures remained the same.

In the Air Force, pursuant to Air Force Manual No.

111-1, an informal hearing to determine probable cause

and whether confinement should be continued was to be

held within 72 hours of initiation of confinement. The

hearing officer was either the officer exercising special

court-martial jurisdiction (OESPCM)J) or a designated staff

judge advocate who was permitted to hold the hearing and

then make a recommendation to the OESPCMJ. Portions

of this program were overturned in United States v. Lynch,

13 M.J. 394 (C.M.A. 1982).

The Coast Guard program set forth in Coast Guard

Manual No. CG-488, the Military Justice Manual,

mandated a probable cause review and independent

decision on continuation of corfinement within 72 hours

after the order to confine. The magistrate could be a

non-lawyer.

In summary, after initiation of pretrial confinement,

probable cause and continuation hearings could occur 7

days after confinement in the Army, "promptly" after 72

hours of confinement in the Navy and Marine Corps, and

within 72 hours after confinement in the Air Force and

54a

Coast Guard. Military requirements for the hearing thus

ran from 3 to 7 days.

From 1976-77 until 1984 when R.C.M. 305 was

promulgated, thousands of magistrate hearings were held,

and program changes were made in light of this extensive

experience. Those administering and participating in these

programs learned the practical difficulties of conducting

such hearings in the real world of frequent unit

deployments and movements, location of forces overseas

and in remote areas, and limited legal resources. This

experience became the background for the provisions of

R.C.M. 305.

IV. THE CURRENT RULE AND THE

RATIONALE BEHIND IT

I will not reiterate the specific provisions of R.C.M. 305

since Senior Judge Jones does so in his dissent. Two

major aspects of the rule must be emphasized, however.

First, if the commander is the authority initially ordering

pretrial confinement, he has already determined that

probable cause exists since Article 9(c) mandates that

standard. In this situation, within 72 hours the commander

must review his decision and determine anew, based on all

facts and circumstances existing at the time of the initial

order and developed after that decision, whether probable

cause exists and whether under all the facts and

circumstances confinement should continue. If he is not

the authority that initiated the confinement, within 72 hours

of receiving the report of confinement, he must determine

ce novo whether probable cause exists and confinement

should continue. Although I agree fully with dissenting

Senior Judge Jones that the commander’s probable cause

determination should, in the military setting, satisfy the

55a

rule of Gerstein and McLaughlin, | will assume arguendo

that it does not and continue my separate explanation of

the reasons why ragpimet s holding does not apply to

the military.

Second, the commander’s determination is reviewed by

a neutral and detached magistrate not more than 7 days

after the initiation of confinement. The magistrate reviews

the information that had been before the commander and

the commander’s basis for his decision to continue

confinement as well as any information developed after the

commander’s decision.

The Analysis to R.C.M. 305 sets forth the drafter’s basis

for the rule as well as the factors that were balanced in

coming to its express terms. The Analysis, written by the

Working Group of the Joint-Service Committee, begins by

providing an explanation of the general balancing of

factors and interests that resulted in the specific aspects of

the rule. This balancing cannot be overly emphasized.

The Working Group considered various

procedural mechanisms for imposition and

review of pretrial confinement. Numerous

practical, as well as legal, concerns were

analyzed and weighed in striking a balance

between individual liberty and protection of

society. The Working Group proceeded

from the premise that no person should be

confined unnecessarily. Neither the prisoner

nor the government benefits from

unnecessary confinement. On the other

hand, in determining when confinement may

be necessary, the nature of the military and

its mission is an important consideration.

56a

Moreover, some of the collateral impact

associated with pretrial confinement in

civilian life (loss of job, income, and access

to defense counsel) is normally absent in the

military setting and pretrial confinement is

seldom lengthy. See R.C.M. 707 [120-day

rule for pretrial confinement]. Finally, the

procedures for imposition and review of

pretrial confinement had to be compatible

with existing resources.

MCM, 1984, Analysis, R.C.M. 305, Introduction, App. 21,

at A21-14.2 (emphasis added).

The Working Group pointed to an obvious distinction

between pretrial confinement in the military and in civilian

life. The consequences of pretrial confinement to the

military member bear no real or meaningful relationship to

that of a civilian at all -- indeed, they pale by comparison.

The military pretrial confinee goes into a local brig

generally at or near his duty station. His pay and

allowances continue unabated, therefore, his personal and

household bills continue to be paid, the house continues to

provide shelter, and food continues to arrive on the family

table. He wears regular military uniforms. He receives

medical care from the same facility as do unconfined

service members. Such confinces may have visitors.

Conjugal visits are foreclosed, but simple pretrial

restriction and normal deployments have the same result.

The accused’s defense counsel can easily visit or

communicate with his or her client. I have been involved

closely with military justice and brigs for about 18 years.

Naval brigs are clean and well-managed. Assaults upon

prisoners by guards or other inmates are exceedingly rare.

In my opinion, whether innocent or not, any thinking

S7a

pretrial confinee would gladly remain in a military facility

for 7 days before a probable cause hearing rather than

doing 48 hours in a civilian jail in New York City or

Detroit.

Of special note is the emphasized portion of the Analysis

which points out an important fact of military command.

Unlike the civilian prosecutor, police officer, or booking

sergeant in a police station, the commander has a real and

substantial interest in not confining an accused, even if

probable cause does exist. A confined "body" is lost to the

unit. That squad leader, machine gunner, flight deck

member, or radar operator is not available for deployment,

an exercise in which the commander wants his unit to meet

its mission and look good, or even for routine

watchstanding where some other unit member must cover

the confinee’s duties. The delay in holding the

magistrate’s hearing inherent in allowing the commander

to make his own decision of probable cause and whether

confinement should continue is fully justified, in my

opinion, since this stage affords an accused a real

opportunity to be released from confinement for reasons

unrelated to probable cause or other facts which would

normally justify continued confinement.

The Analysis goes on to make clear that notification of

the commander within 24 hours of confinement is

mandated by Article 11(b). Thus, in such cases,

government agents have the equivalent of one day to make

the report. The Analysis also points out that Congress

enacted Article 11(b) to set in motion the procedures for

approving or disapproving that confinement. This portion

of the Analysis makes clear that the rule "places the initial

decision for pretrial confinement with the prisoner’s

commander.”

58a

Although the immediate commander may

not be a neutral and detached official for

pretrial confinement purposes, it is

appropriate to give this officer the initial

decision on pretrial confinement, so that the

command implications of this determination

may be fully considered and developed for

later review. This will enable the

commander, who is in the best position to

assess the predictive elements of the pretrial

confinement decision, including not only the

prisoner’s likely behavior, but also the

impact of release or confinement on mission

performance, to make a record of such

factors for initial review. .. .

The 72-hour requirement is intended to

ensure reasonably prompt action by the

commander, while at the same time allowing

for situations in which the commander is not

immediately available. . . .

MCM, 1984, Analysis, R.C.M. 305(h), App. 21, at A21-15

(citations omitted).

This passage reflects a truism -- the commander is

responsible for the effects of having the accused return to

his unit, not the magistrate who may have no experience at

all in the practical realities of command or accomplishing

this or any other unit’s mission. In the vast majority of

cases, the commander knows the confinee far better than

the magistrate does or ever will.

Further, in explaining the reason for adding the

59a

prevention of serious misconduct as a ground for continued

pretrial confinement, the Analysis states:

The need for confinement to prevent serious

misconduct is particularly acute in the

military. The business of military units and

the interdependence of their members render

the likelihood of serious criminal misconduct

by a person awaiting trial of even graver

concern than in civilian life. Moreover, . .

. these concerns render a broader range or

[sic] misconduct of a potentially serious

nature. For example, the "quitter" who

disobeys orders and refuses to perform

duties, while others are expected to carry out

unpleasant or dangerous tasks, has

immensely adverse effect on morale and

discipline which, while intangible, can be

more dangerous to a military unit than

physical violence. Thus, although the “pain

in the neck" may not be confined before trial

solely on that basis, the accused whose

behavior is not merely an irritant to the

commander, but is rather an infection in the

unit may be so confined. Even constant

supervision accomplishes little in such cases,

and military resources do not permit, nor is

it reasonable to require, the establishment of

some holding facility other than a

confinement facility for such persons.

MCM, 1984, Analysis, R.C.M. 305(h)(2)(B), App. 21, at

A21-16 (citations omitted). Again, the Analysis points to

realities and factors that are indisputable in military society

but which are generally absent or substantially less

pronounced in civilian life.

60a

Although the Analysis of R.C.M. 305 may not be cited

as the President’s intent, MCM, 1984, Analysis,

Introduction, App. 21, at A21-3, the conclusions of the

Working Group demonstrate that government officials,

with the benefit of experience with thousands of magistrate

hearings conducted under the various magistrate programs

of the services and the Coast Guard, carefully balanced the

government’s interests against those of pretrial confinees in

determining the procedures for instituting and maintaining

pretrial confinement. The more senior officers of the

Joint-Service Committee then sent the rule to the Code

Committee. The proposed rule was made public and

comments were received from the public and the

Department of Defense (DOD). After the Working Group

considered the comments and made changes, the rules went

back to the Joint-Service Committee before submission to

the DOD General Counsel and submission to the President

after transmittal to the Office of Management and Budget.

After Congress passed the Military Justice Act of 1983, the

Rules for Courts-Martial were again examined by the

Working Group and changes went through a similar

procedure. Finally, the 7-day period following the order

of confinement for the magistrate’s hearing became a

uniform provision for all services. In short, this rule was

the product of careful, thorough consideration by executive

officials, based on extensive data drawn from years of

experience, and the public reviewed the proposed rule with

the-opportunity to comment on it prior to its consideration

and passage by Congress.

V. THE RATIONALE BEHIND THE

McLAUGHLIN HOLDING

The majority in McLaughlin emphasize that the Court’s

holding is based on a reconciliation of the same competing

6la

interests that underlay the holding in Gerstein. Those

competing interests are: (1) the States’ "strong interest in

protecting public safety by taking into custody those

persons who are reasonably suspected of having engaged

in criminal activity," and (2) the fact that "prolonged

detention based on incorrect or unfounded suspicion may

unjustly imperil [a] suspect’s job, interrupt his source of

income, and impair his family relationships." McLaughlin,

_ US. _, 111 S. Ct. at 1668, (citing Gerstein) The

holding of Gerstein was a"’ practical compromise’ between

the rights of individuals and the realities of law

enforcement." 111 S. Ct. at 1668 (citing Gerstein). The

Court made clear that "Gerstein struck a balance between

competing interests; a proper understanding of the decision

is possible only if one takes into account both sides of the

equation." 111 S. Ct at 1669.

A specific time limit was necessary to the majority in

McLaughlin because of the flood of litigation in the federal

courts due to the wide variety of practices in cities and

counties throughout the United States regarding the delay

between detention and the probable cause hearing. The

announced 48-hour presumption was "to provide some

degree of certainty so that the States and counties may

establish procedures with confidence that they fall within

constitutional bounds." 111 S. Ct. at 1670 (emphasis

supplied). Thus, jurisdictions that met the 48-hour limit

would "be immune from systemic challenges." Id. The

presumption was therefore in large part a judicial device to

reduce federal court litigation of claims arising from

countless different procedures employed by states and local

jurisdictions.

The extended dissent by Justice Scalia focuses on the

common law right of a citizen arrested without a warrant

62a

to be taken before a magistrate as soon as reasonably can

be done, a right embodied in the Fourth Amendment.

Justice Scalia concluded that the promptness requirement

means that the detained suspect must be taken before a

magistrate immediately after completing the administrative

steps incident to arrest and arranging for the magistrate.

Relying on the available data, he noted that the federal

courts, most state courts, commissions, and commentators

generally have concluded that in civilian jurisdictions the

administrative processing incident to arrest and arranging

for a magistrate’s hearing took no more than 24 hours in

the great majority of cases.

VI. APPLICATION OF McLAUGHLIN TO

THE CASE AT BAR

Given the President’s statutory authority to make rules

such as R.C.M. 305, and the substantial evidence that the

rule was in fact carefully considered by knowledgeable

agents of the executive branch, nothing in McLaughlin

suggests, much less mandates, that the President’s rule be

overturned. The first factor in the balance described in

McLaughlin, the government’s "strong interest in protecting

public safety by taking into custody those persons who are

reasonably suspected of having engaged in criminal

activity," is demonstrably greater in military society. On

the other side of the equation, as I have noted previously,

the consequences of pretrial confinement to the innocent

military accused are nothing like that suffered by the

civilian confinee.

Further, military courts constitute a unitary judicial

system. R.C.M. 305 is a clearly defined and easily

understood rule that until now has produced little appellate

litigation. Thus, the practical reason for the presumption

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of McLaughlin, to preclude repetitive litigation by giving

the States and counties a fixed standard, is entirely absent

from our court system. Finally, the experience and data

relied upon in setting the 48-rule of McLaughiin is

irrelevant to military experience. As I have pointed out,

our experience and data derive from the several magistrate

programs that existed before R.C.M. 305 became law. The

majority in this case do not even discuss whether any link

exists between the experience and data considered in

McLaughlin and that from the military which existed when

the President promulgated R.C.M. 305 or exists now.

Nor does the McLaughlin dissent relate in any logical

manner to the case before us. Justice Scalia wrote of a

common law rule and common law traditions that have

never applied to military service. Every source of data or

consideration of this issue mentioned by him is unrelated

to military tradition or practice. Indeed, the basis of his

opinion itself shows how little relevance McLaughlin has

to military law.

The Supreme Court never contemplated military rules or

interests in McLaughlin, and the majority in this case

essentially ignore, among many other things, an essential

feature of R.C.M. 305 that protects identifiable,

fundamental interests -- the commander’s probable cause

determination and continuation of confinement decision.

In order that the commander can make a reasonably

informed decision, he must not only gather information

concerning the alleged crime and the accused’s suspected

participation in it, but just as importantly, he must be given

time to balance the effect of the crime and the accused’s

continued freedom against the loss of the accused’s service

on the efficiency and capability of his unit and the

accused’s liberty interest. Experienced military officers are

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well aware that even obviously guilty accuseds are often

released from pretrial confinement solely on the ground

that they are needed in the unit. This stage offers every

pretrial confinee a chance for release based on the needs of

the unit or simply the personal predilections of the

commander, something that is nonexistent in civilian life.

The President apparently considered this to be an important

stage. The importance of this step in the pretrial

confinement process justifies pushing back the time when

the magistrate must hold a probable cause hearing.

Further, when I factor in the congressionally-mandated

requirement that rules of practice and procedure must as

much as is practicable be uniform among the services, see

Article 36(b), and the world-wide character of military

service, R.C.M. 305 easily passes constitutional muster. |

have no doubt that if this issue involving military pretrial

confinement procedures is presented to the Supreme Court

and the Court reexamines the interests involved, the Court

will accede to the President’s considered determination that

the military pretrial detainee may experience 7 days of

confinement before a probable cause hearing takes place.

My dissent is not only from the majority’s specific

holding in this case, it is more basic. I believe that as

military appellate judges we are expected to integrate the

realities and necessities of our separate and distinct military

society with those of American society in general in

deciding the cases before us that involve constitutional

issues. Congress expects us to bring our military

experience and knowledge of the requirements and

operation of a world-wide military system to our appellate

duties. When given the initial appellate opportunity, we

are tasked with deciding which decisions of the Supreme

Court apply to the military services based on the

uniqueness of military society as well as those factors that

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civilian and military society share. We were not created to

be appellate ciphers whose purpose is to copy Supreme

Court holdings thoughtlessly and paste them onto our

decisions. The majority’s unspoken implication that we

may not analyze Supreme Court decisions to determine the

rationale and salient facts behind their holdings and decide

whether that rationale or those facts are distinguishable

from the cases before us suggests that in constitutional

interpretation we have no meaningful role at all.

The expressed basis for the majority decision is given in

one sentence: "Because we believe the Court of Military

Appeals has established the precedent that Gerstein is

applicable to the Armed Forces, and Gerstein involves a

constitutional issue, we conclude that we must follow that

constitutional precedent." Of course, the holding of

Gerstein is only that a probable cause hearing must take

place "promptly" after initiation of pretrial confinement.

"Promptness” in this context is as much defined by facts

and experience as is "reasonableness" in the search and

seizure arena. Yet, as has been shown before, the 48-hour

standard of McLaughlin is based on experience and data

derived from civilian state and local practice that is totally

unrelated to military realities.

The majority assert that under the rule of Jacoby the

burden is upon the government to show that McLaughlin

is inapplicable to military law and procedure. Previous

military decisions applying the Fourth Amendment to

military situations have never required specific facts in the

record or a DuBay hearing to establish fundamental

differences between civilian and military society that

justify a different legal rule for courts-martial. Méilitary

exigencies may be present under the facts of a given case;

or they may exist with respect to a whole category of

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intrusions." Morris, 28 M.J. at 10 (emphasis added)

(citations omitted); Middleton, 10 M.J. at 127. When

obviously relevant and substantial differences exist between

civilian and military society that justify deviating from a

constitutional principle emanating from civilian society,

neither the Supreme Court nor our military courts have

hesitated to acknowledge them.

Further, placing such a burden on the government in this

case is tantamount to presuming the unconstitutionality of

a Rule for Courts-Martial. Such a presumption cannot be

reconciled with the traditional, long-standing deference

with which the Supreme Court has reviewed congressional

legislation regarding the military services or Presidential

regulations governing military service. The President’s rule

is much more than an interesting opinion or strong advice,

it is a regulation promulgated by the statutory authority of

Article 36, UCMJ, 10 U.S.C. § 836. Article 36 derives

directly from a constitutional provision that is an inherent

element of our constitutional scheme and a recognition of

the necessary authority of the Commander-in-Chief. U.S.

Const., Art I, § 8. The majority give virtually no deference

to the President’s determination that in our world-wide

military structure, based on experience and available

resources, 7 days is a reasonable period to complete the

commander’s confinement review and collect the required

parties at one location for a magistrate’s hearing. Rather

than granting this decision the substantial weight that it

deserves, without pointing to any facts in the record, they

conclude that the 48-hour rule of McLaughlin has been in

effect without difficulty in the Army since 24 May 1991.

Even if this assertion is true, and it is unclear on what data

or information the assertion is based, it is irrelevant since

the mission, organization, and operations of the Army are

quite different from those in the Navy or the Marine

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Corps.

VII. THE PRACTICAL RESULT OF A

48-HOUR PRESUMPTION IN_ THE

MILITARY

I am unsure how the majority’s adoption of McLaughlin

applies to military practice. If Seaman Deuce is an

unauthorized absentee (AWOL in other services) for

several months and is picked up in a traffic stop in

Bucksnort, Tennessee, does the 48-hour clock start when

civilian authorities apprehend him for the military, when

the military is notified, when the chasers finally get to

Bucksnort, when the chasers get him to the nearest military

confinement facility, or when he returns to the confinement

facility near his unit? During oral argument, appellate

defense counsel contended that the clock does not begin

ticking until the accused is ordered into pretrial

confinement by a military authority. United States v.

Ballesteros, 29 M.J. 14 (C.M.A. 1989), holds that when

civilian authorities apprehend a military absentee solely for

the military, even far from the servicemember’s unit or any

military base, the R.C.M. 305 clock begins ‘once the

civilians notify military authorities of his detention and

availability for pick-up. In hundreds of cases, however,

the accused is apprehended far from any military

magistrate, military lawyer, or any other military authority.

If Ballesteros continues to be the law, in a whole class of

cases involving unauthorized absence, the 48-hour

presumption routinely will be exceeded, resulting in a

flood of litigation to determine if the presumption is

rebutted -- the sort of flood that McLaughlin was intended

to preclude.

Nothing before us indicates that a significant number of

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accuseds are now being confined without probable cause.

We have no statistics showing how many accuseds who are

confined pursuant to probable cause are released by the

magistrate because continued confinement is unwarranted.

No evidence before this Court suggests, much less

establishes, that military authorities are not now trying to

hold the magistrate hearing as soon as is practicable. If

they are now doing their best with the resources that are

reasonably available, the 48-hour presumption probably

will not hasten magistrate hearings. If military authorities

are now lackadaisical in meeting UCMJ requirements to

prevent any unnecessary delay in the disposition of a case,

the threat of a few days of additional sentence credit will

not scare those authorities into action. In the cases of the

unauthorized absentees mentioned above, it is fatuous to

contend that in fact probable cause to confine is lacking.

What will be lacking before 48 hours is the presence of a

magistrate to hold a hearing or available proof of probable

cause or sufficient presentable evidence to justify continued

confinement. Thus, the result will be that in numerous

cases the guilty accused, for whom probable cause to

confine always existed, will receive a confinement credit

in addition to that mandated by United States v. Allen, 17

M.J. 126 (C.M.A. 1984).

The dissent in McLaughlin emphasizes that its rule is

intended to be a protection for the innocent accused

confined before trial. Certainly, a 48-hour presumption

may hasten some hearings. In fact, however, even with a

48-hour presumption, if governmental authorities are

indifferent to their duty to hold a hearing promptly, and an

innocent military accused is released from confinement

after a tardy hearing, no remedy is available at all since

innocence generally means no sentence against which a

credit can apply. This accused is left with the same

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remedies that now apply, such as Article 138 complaints,

when a commander locks up a servicemember on

nonexistent or flimsy evidence.

For these reasons, I would hold that the 48-hour rule of

McLaughlin is inapplicable to the military and that R.C.M.

305 accords fully with constitutional requirements. I

would affirm the findings and sentence as approved on

review below.

ee ea een eee

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APPENDIX E

UNITED STATES COURT OF MILITARY APPEALS

No. 93-5007

United States, Appellant

Wesley M. Rexroat, Appellee

Argued July 12, 1993.

Decided September 29, 1993.

For the United States: Major Joseph C. Swetnam

(argued); Colonel Dayton M. Cramer and Lieutenant

Colonel Joseph A. Russelburg (on brief).

For the Accused: Captain David L. Thomas (argued);

Colonel Malcolm H. Squires, Jr., Lieutenant Colonel James

H. Weise, Major Fran W. Walterhouse (on brief).

GIERKE, Judge:

A general court-martial composed of officer and enlisted

members convicted Private First Class Rexroat, in

accordance with his pleas, of 2 specifications of absence

without leave; attempted larceny from a Navy Exchange;

and 41 specifications of uttering worthless checks, in

violation of Articles 86, 80, and 123a, Uniform Code of

Military Justice, 10 USC §§ 886, 880, and 923a,

respectively. The approved sentence provides for a

bad-conduct discharge, confinement for 30 months, total

forfeitures, and reduction to Private El.

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At trial, PFC Rexroat, appellee in this case, requested

credit for 5 days of illegal pretrial confinement, arguing

that a magistrate did not conduct a probable-cause review

of his pretrial confinement within 48 hours as required by

County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct.

1661 (1991). The military judge denied the request. The

Court of Military Review granted PFC Rexroat 5 days of

credit for illegal pretrial confinement. 36 MJ 708, 715

(1992) (en banc).

The Judge Advocate General certified the following

questions for our review:

DID THE ARMY COURT OF MILITARY

REVIEW CORRECTLY CONCLUDE

THAT THE PROVISIONS OF RCM 305(c)

AND (d) OF THE 1984 MANUAL

CANNOT MEET THE REQUIREMENTS

OF GERSTEIN [v. PUGH, 420 U.S. 103

(1975)] AND [COUNTY OF] RIVERSIDE

[v. MCLAUGHLIN, 500 U.S. 44, 111 S.CT.

1661 (1991)]?

DID THE ARMY COURT OF MILITARY

REVIEW CORRECTLY HOLD THAT

THE REVIEW BY LTC [LIEUTENANT

COLONEL] RANDALL COULD NOT

MEET THE REQUIREMENTS’ OF

GERSTEIN AND RIVERSIDE?

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EVEN IF THIS COURT AGREES WITH

THE ARMY COURT THAT RCM 305(i) IS

THE ONLY AUTHORIZED MEANS TO

REVIEW A COMMANDER’S PRETRIAL

CONFINEMENT ORDER, IS THE SEVEN

DAY TIME LIMIT OF RCM 305(i)

NONETHELESS REASONABLE IN THE

MILITARY?

With respect to the first certified issue, we hold that the

Court of Military Review was incorrect when they

concluded that RCM 305(c) and (d), Manual for

Courts-Martial, United States, 1984 (see Appendix), cannot

meet the requirements of Gerstein and McLaughlin. We

hold further that RCM 305(h) complies with Gerstein and

McLaughlin when pretrial confinement is reviewed by a

neutral and detached commander, if the review is

accomplished within the time limits established by

McLaughlin.

We answer the second certified issue in the negative.

The record establishes that LTC Randall was neutral and

detached. Although his review could not satisfy RCM

305(i) because he was not authorized by service regulations

to conduct the RCM 305(i) review, his independent review

of the probable-cause determination by the unit

commander, Major Williams, was not prohibited by law or

regulation; was conducted within the time limits established

by McLaughlin; and was therefore sufficient to satisfy

Gerstein and McLaughlin.

The third certified issue is resolved by our answer to the

first certified issue. RCM 305(i) is not the only authorized

means to review probable cause for pretrial confinement.

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The pertinent facts are undisputed. PFC Rexroat was

apprehended for shoplifting at the Pearl Harbor Navy

Exchange on June 26, 1991. He was absent without leave

at the time. He remained in custody until Major Williams

ordered him into pretrial confinement on June 27 in

accordance with RCM 305(d).

On June 28, LTC Randall, a unit commander not in PFC

Rexroat’s chain of command, was briefed on the facts of

the case and determined that there was probable cause to

keep PFC Rexroat in confinement. LTC Randall’s authority

to review PFC Rexroat’s pretrial confinement was not

contested at trial. LTC Randall had no knowledge of the

case and was not otherwise involved in the prosecution of

PFC Rexroat.

Major Williams reviewed PFC Rexroat’s confinement in

accordance with RCM 305(h) and memorialized his

findings of probable cause and the need for continued

confinement in a memorandum dated July 3, 1991. The

timeliness of his RCM 305(h) review is not disputed. Also

on July 3, Major Hudson, a judge advocate who had been

appointed a military magistrate, conducted a hearing at

which PFC Rexroat was represented by military counsel.

Major Hudson determined that continued pretrial

confinement was appropriate. On August 1, 1991, Major

Steen, who apparently was Major Williams’ successor in

command, preferred charges against PFC Rexroat.

In Gerstein v Pugh, 420 U.S. 103 (1975), the Supreme

Court held that the Fourth Amendment requires a person

arrested without a warrant to be given a prompt judicial

determination of probable cause as a prerequisite to pretrial

detention. This "prompt" judicial determination was to be

made by a neutral and detached person independent of the

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police or prosecutor.

County of Riverside v. McLaughlin, 500 U.S. 44, 111

S.Ct. 1661 (1991), went one step further to define what is

"prompt" under Gerstein. The Court set out a bright-line

rule that probable-cause determinations made after 48

hours of arrest are presumptively untimely. The Court

stated:

Where an arrested individual does not

receive a probable cause determination

within 48 hours, the calculus changes. In

such a case, the arrested individual does not

bear the burden of proving unreasonable

delay. Rather, the burden shifts to the

government to demonstrate the existence of

a bona fide emergency or _ other

extraordinary circumstance.

111 S.Ct. at 1670.

In Courtney v. Williams, 1 MJ 267 (CMA 1976), this

Court, referring to Gerstein, held that "those procedures

required by the Fourth Amendment in the civilian

‘community must also be required in the military

community,” unless military necessity required a different

rule. /d. at 270. The Court also held that, since bail does

not exist in the military, "a neutral and detached magistrate

must decide more than the probable cause question. A

magistrate must decide if a person could be detained and

if he should be detained." /d. at 271 (footnotes omitted).

Article 9(d), UCMJ, 10 USC § 809(d), provides: "No

person may be ordered into arrest or confinement except

for probable cause." In order to comport with the

75a

requirements of Gerstein and Courtney, the President

promulgated RCM 305, which implements Article 9(d) and

contains specific procedures for pretrial-confinement

review. RCM 305(c) and (d) provide that a commissioned

officer may order confinement only upon probable cause.

RCM 305(h) requires a commander to determine within 72

hours whether pretrial confinement will continue. RCM

305(i) provides for review by "a neutral and detached

officer" within 7 days of "the adequacy of probable cause

to believe the prisoner has committed an offense and of the

necessity for continued pretrial confinement." Lastly, RCM

305() provides for review of “the propriety of pretrial

confinement" by a military judge "once the charges . . . are

referred to trial."

The Gerstein requirement for an initial probable-cause

determination is addressed in Article 9(d) and RCM

305(d). The required prompt review of probable cause is

addressed in RCM 305(h) and (i). The concern expressed

in Courtney v. Williams, 1 MJ at 271, for a "bail hearing"

substitute is addressed in RCM 305(i). Lastly, RCM 305(j)

provides the judicial review by a military judge which was

lacking at the time Courtney was decided.

Transposing Gerstein and McLaughlin to military

practice requires some discussion of terminology. Gerstein

and McLaughlin both involved arrest by civilian police and

pretrial detention in a jail house. PFC Rexroat was

apprehended and held in custody until his commander

could be notified and could determine whether to place

him in pretrial confinement. Both "apprehension" and

"custody" are terms of art in military law. See RCM

302(a)(1) ("Apprehension is the taking of a person into

custody."). "Custody" may include physical restraint, albeit

temporary. See United States v. Ellsey, 16 USCMA 455,

76a

458-59, 37 CMR 75, 78-79 (1966). "All commissioned,

warrant, petty, and noncommissioned officers" may take a

person into custody pursuant to RCM 302(b)(2); but only

a commissioned officer may order an enlisted person into

pretrial restraint and only a commanding officer may order

a civilian or officer into pretrial restraint. RCM 304(b).

Pretrial confinement is a form of pretrial restraint. RCM

304(a)(4). Thus, when Major Williams ordered PFC

Rexroat into pretrial confinement, he was actually

continuing the physical restraint of PFC Rexroat in the

Navy brig. However, upon execution of Major Williams’

order, PFC Rexroat’s condition legally changed from

"custody" to “pretrial confinement."

The first question we must decide is whether the 48-hour

time limit established in McLaughlin applies to the military

services. The Army Judge Advocate General assumed that

it did and issued guidance for implementing it. See 36 MJ

at 712-13 n. 5. We agree that the 48-hour time limit

imposed by McLaughlin applies to the military services.

The purpose of RCM 305 was to comply with Gerstein

and Courtney and their progeny. See Drafters’ Analysis of

RCM 305, Manual, supra at A21-14.2 (Change 3).

McLaughlin refined Gerstein by defining the outer limits

of a "prompt" review of pretrial detention. Applying the

Courtney mandate, "we discern no consideration of military

necessity that would require a different rule." 1 MJ at 270.

It is important to note that McLaughlin merely sets up

a presumption of untimely review when the 48-hour limit

is exceeded. Therefore, if military exigencies prevent

completion of probable-cause review within 48 hours, the

fact of those exigencies may be used to rebut the

presumption.

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The next question is who is constitutionally qualified to

conduct the review. PFC Rexroat contends that the

probable-cause review must be conducted by a military

magistrate. The Government contends that the review need

only be made by a neutral and detached official, and that

the commander’s initial probable-cause determination under

RCM 305(d) and the probable-cause review under RCM

305(h), both of which were accomplished within 48 hours

in this case, were sufficient to satisfy Gerstein and

McLaughlin.

In cases involving search authorizations, as opposed to

imposition of pretrial confinement which is involved in this

case, the question whether a commander may qualify as a

neutral and detached magistrate has been the subject of

many, often fragmented, opinions from this Court. In

United States v. Ezell, 6 MJ 307 (CMA 1979), Judge Perry

and Judge Cook held that a commander could act as a

neutral and detached magistrate and issue a search

authorization. In his principal opinion, Judge Perry wrote:

We decline, however, to hold that military

commanders are per se disqualified to act as

neutral and detached magistrates . .

In the case of United States v. Ezell,

Number 31,304, we have determined that the

commander acted as an impartial magistrate

and that decision is, accordingly, affirmed."

6 MJ at 318, 310. Judge Cook wrote:

An undeviating line of cases in this Court

has acknowledged that a commanding

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officer is qualified to act as a neutral and

detached magistrate to authorize a search in

the military community.

6 MJ at 330. Chief Judge Fletcher had difficulty accepting

a commander as a military counterpart to a civilian

magistrate, but he recognized that a search authorized by

a commander upon a showing of probable cause may be

reasonable. 6 MJ at 330.

In United States v. Stuckey, 10 MJ 347 (CMA 1981),

Chief Judge Everett, joined by Judge Fletcher, found a

search authorization by a commander to be “reasonable.”

Chief Judge Everett, however, observed that, while we

have "equated" a commander to a federal magistrate, a

commander "cannot pass muster constitutionally as a

*magistrate’ in the strict sense" and that "the commander

is not a true ’magistrate."" 10 MJ at 361.

More recently, in United States v. Lopez, 35 MJ 35

(CMA 1992), we decided that a commander who is neutral

and detached is entitled to the same judicial deference on

appellate review as a military judge when we review a

search authorization for probable cause. Although there

were four separate opinions in Lopez, a clear majority of

this Court decided that the commander qualified as a

neutral and detached magistrate in that case.

Our decisions involving review of pretrial confinement

have dealt with review of the necessity for continued

pretrial confinement, now covered by RCM 305(i) and (j),

rather than the initial probable-cause determination now

covered by RCM 305(d) and (h), although there is

considerable dicta concerning the latter. In Courtney v.

Williams, supra, this Court entertained a petition for

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extraordinary relief from a Navy prisoner who had

requested the military judge to review the propriety of his

pretrial confinement. The military judge ruled that, under

then-existing procedures, he had no authority to review

pretrial confinement, and the petitioner asked for

extraordinary relief. In a decision with three separate

opinions, this Court denied relief. Chief Judge Fletcher,

joined by Senior Judge Ferguson, held that no relief could

be granted because the petitioner had been released from

confinement. Chief Judge Fletcher examined Gerstein v.

Pugh, supra, and the lack of bail procedures in the military

and concluded that "a magistrate must decide if a person

could be detained and if he should be detained.” 1 MjJ at

271. Although joining Chief Judge Fletcher, Senior Judge

Ferguson noted that the military judge "certainly is not the

only figure" with authority to review pretrial confinement.

1 MJ at 272 n. 2. Judge Cook concurred in the result,

Stating that a military judge had no authority to review

pretrial confinement. 1 MJ at 272.

The Gerstein and Courtney opinions discuss both the

initial probable-cause determination, i.e., whether the

person "could be detained," as well as the subsequent

review of the necessity for continued pretrial detention,

i.e., whether the person "should be detained." Although the

issue before our Court in Courtney dealt only with the

question whether the military judge had authority to review

the legality of the petitioner’s pretrial confinement, Chief

Judge Fletcher’s dicta went beyond the issue in that he

opined that a "magistrate" must determine whether the

person "could be detained" as well as whether the person

"should be detained." Courtney does not address who

qualifies as a "magistrate"; the decision turns on the

authority of a military judge to review pretrial

confinement.

80a

United States v. Malia, 6 MJ 65 (CMA _ 1978),

considered the issue whether a commander could overrule

the decision of a military magistrate releasing a soldier

from pretrial confinement. Chief Judge Fletcher, joined by

Judge Perry, held that the commander could not overrule

the military magistrate. Chief Judge Fletcher stated, "The

cases which preceded Courtney directed necessary pretrial

confinement hearings to be conducted by a judge. A

magistrate by definition is a judge." 6 MJ at 66 (footnote

omitted). Judge Cook dissented, repeating his assertion that

the magistrate required by Gerstein need not be a judge.

The three cases in the Malia footnote all involved lengthy

pretrial confinement. 6 MJ at 66 n.1. In each case this

Court, with Judge Cook dissenting, ordered the military

judge to which the case was referred to convene a pretrial

session to inquire into the legality of the pretrial

confinement. Milanes-Canamero v. Richardson, 23

USCMA 710, 50 CMR 916 (1975); Phillippy v. McLucas,

23 USCMA 709, 50 CMR 915 (1975); Porter v.

Richardson, 23 USCMA 704, 50 CMR 910 (1975).

Although the Malia opinion contains broad language ("A

magistrate by definition is a judge."), the holding extended

only to the authority of a commander to overrule a military

magistrate.

In United States v. Lynch, 13 MJ 394 (CMA 1982), the

question was whether the staff judge advocate and the

special court-martial convening authority were both

disqualified from making the decision whether a person

should remain in pretrial confinement. Judge Fletcher,

joined by Chief Judge Everett, held that neither the staff

judge advocate nor the convening authority qualified as a

neutral and detached magistrate. In his lead opinion, Judge

Fletcher stated that

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the following persons authorized by the

Code to confine are constitutionally qualified

as a judicial officer to make the pretrial

confinement decision:

First, a military judge constituted as such

within the meaning of Article 26, UCMJ, 10

USC § 826.

Second, a military magistrate empowered

by service regulations and untainted by and

unconnected with the court-martial referral

process.

Third, any other person authorized by the

Code to confine who is not directly or

particularly involved in the command’s law

enforcement function.

13 MJ at 397 (citation omitted). Judge Cook again

dissented.

Although many of our prior decisions contain broad

dicta arguably applying to the initial probable-cause

determination, PFC Rexroat’s case is the first case in

which we must squarely decide who is constitutionally

qualified to make and review the initial probable-cause

determination.

Turning to the facts of this case, we hold that a

commander is not per se disqualified to make the initial

probable cause review required by Gerstein. The Supreme

Court has held that a non-lawyer may be constitutionally

qualified to determine whether there is probable cause to

detain a person. Shadwick v. City of Tampa, 407 U.S. 345

82a

(1972). We have held that a non-lawyer may be

constitutionally qualified to determine whether there is

probable cause to search. United States v. Lopez, 35 MJ at

40. We have held that a commander is not per se

disqualified to determine whether there is probable cause

to search. United States v. Ezell, 6 MJ 307 (CMA 1979);

United States v. Lopez, supra. We perceive no reason to

treat the determination of probable cause for pretrial

confinement differently from probable cause to search.

Accordingly, we hold that either of the commander's

probable-cause determinations required by RCM 305(d) or

(h) can satisfy Gerstein if the commander is neutral and

detached, and can satisfy McLaughlin if conducted within

48 hours.

Major Williams’ determination of probable cause for

pretrial confinement was conducted within the McLaughlin

time limits. Therefore, cither of Major Williams’ actions in

accordance with RCM 305(d) and (h) could satisfy

Gerstein and McLaughlin if Major Williams was neutral

and detached. The charge sheet reflects that he was not the

formal accuser in this case. The initial detention of PFC

Rexroat was by security personnel at Pearl Harbor and was

not at Major Williams’ direction. Thus Major Williams was

not reviewing his own decision when he made his RCM

305(d) determination. Whether he was otherwise involved

in the case against PFC Rexroat cannot be determined from

the record. Accordingly, we are unable to determine if

Major Williams was constitutionally qualified to perform

the initial probable-cause determination required by

Gerstein and RCM 305(d).

We turn next to the probable-cause review conducted by

LTC Randall. The record reflects that LTC Randall had no

prosecutorial or law enforcement role in this case. We are

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satisfied, as was the military judge and the court below,

that he was neutral‘and detached; however, as the court

below found, LTC Randall was not authorized by Army

Regulations to perform the RCM 305(i) review. See 36 MJ

at 714. Furthermore, since LTC Randall was not PFC

Rexroat’s commander, he was not authorized to perform

the RCM 305(h) review. Nevertheless, the record shows no

legal impediment to LTC Randall’s conducting the

probable-cause review required by Gerstein. While RCM

305 establishes specific procedures for reviewing pretrial

confinement, it does not prohibit additional procedures not

specifically req ired by RCM 305, such as LTC Randall’s

independent review. As a commissioned officer LTC

Randall was empowered to order PFC Rexroat into

confinement. Art. 9(b); RCM 304(b)\(2). LTC Randall was

not "directly or particularly involved in the command’s law

enforcement function." United States v. Lynch, 13 MJ at

397. Therefore, we hold that LTC Randall’s independent

review of the probable cause for pretrial confinement

complied with Gerstein, Courtney, and Lynch, and was

completed within the time limits imposed by McLaughlin.

The review by the military magistrate, Major Hudson,

complied with RCM 305(i) and satisfied the Courtney

requirement for a “bail” hearing. While Major Hudson was

constitutionally qualified to conduct the initial

probable-cause review required by Gerstein, his review

does not satisfy McLaughlin because it was not completed

within 48 hours.

PFC Rexroat argues that the RCM 305(i) review is the

only “authorized” probable-cause review and that, because

it did not comply with McLaughlin in this case, he is

entitled to relief. We disagree. RCM 305(d), (h), (1), and

(j) all provide for a probable-cause review, any one of

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which, if conducted by a neutral and detached official

within 48 hours, would satisfy Gerstein and McLaughlin.

PFC Rexroat also cites the Drafters’ Analysis of RCM

305 for the proposition that RCM 305(c), (d), and (h) were

not intended by the President to be the Gerstein review.

We reject this argument for two reasons. First, the

Drafters’ Analysis is a reflection of

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