MOTIONS PRACTICE

M in Limine, Other Crimes, Wrongs, or Acts – MRE 404(b). Courts apply a four-part test to determine whether evidence of uncharged misconduct will be admitted. United States v. Loving, 41 M.J. 213, 245 (1994).

• First, the evidence must be offered for a proper purpose. United States v. Rodriguez, 31 M.J. 150, 155 (C.M.A. 1990). Showing that the AC has a predisposition to crime is not a proper purpose. United States v. Taylor, 53 MJ 195, 199 (2000); United States v. Castillo, 29 MJ 145, 150 (CMA 1989).
• Second, the evidence must be reasonably tend to prove that the accused committed the uncharged misconduct. Id.
• Third, it must make a fact that is of consequence to the action more or less probable. United States v. Ferguson, 28 M.J. 104, 108 (C.M.A. 1989).
• Finally, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)
• Doctrine of chances – Where the facts of the prior bad acts are sufficiently similar, they will be admitted to rebut a defense that asserts a subsequent set of similar facts in the pending case. Tyndale, 56 MJ 209 (CAAF 2001)

M to Admit MRE 412 Evidence – Applies whenever there is “other sexual behavior” of a victim of an alleged nonconsensual sexual offense. In any proceeding involving alleged sexual misconduct, evidence of any alleged victim's sexual behavior or sexual predisposition is inadmissible except; (b) (1)

• (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
• (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
• (C) evidence the exclusion of which would violate the constitutional rights of the accused.

Evidence of prior sexual activity is constitutionally required if it is relevant, material and favorable to the defense's theory of the case. See United States v. Dorsey, 16 M.J. 1 (CMA 1983) and United States v. Harris, 41 M.J. 890, 892 (Army Ct. Crim. App. 1995). The party intending to offer evidence must file a written motion at least five days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered and serve the motion on the opposing party, the military judge and notify the alleged victim, or, when appropriate, the alleged victim's guardian or representative. The evidence will be admissible only if, during the required hearing, the military judge determines that the evidence is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice. Notice that it does not say “substantially outweighs.” If the information is relevant, usually the MJ will let you ask just one or two questions; sometimes it’s just enough to make the panel start asking questions.

M in Limine – Improper Opinion Evidence - Most common case is where TC wants rape counselor or other witness to testify that they believe the victim, or that she sounds credible. Witnesses may not invade the exclusive function of the finder-of-fact to determine the credibility of the witnesses. Harris, 51 M.J. 191 (C.A.A.F. 1999); U.S. v. Suarez, 35 M.J. 374 (C.M.A. 1992). Side note – Govt CAN have witnesses testify to victim’s good character or reputation for truthfulness, but only after you have already attacked that witness’ character and reputation for truthfulness. It’s improper bolstering if they don’t wait for you to attack first.

M in Limine – Expert Opinion – MRE 702. Daubert v. Merrell Dow Pharmaceutical, Inc.,509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993): MRE 702 focuses on the admissibility of three categories of expert testimony that will assist the trier of fact to understand the evidence or to determine a fact in issue. The three categories are "scientific, technical, or other specialized knowledge." Daubert set forth a list of factors MJ should consider in assessing the validity and associated relevance of proffered expert scientific testimony:

• (1) whether the theory or technique in question can be (and has been) tested,
• (2) whether it has been subjected to peer review and publication,
• (3) its known or potential error rate, and
• (4) whether it has attracted widespread acceptance within a relevant scientific community.

This rationale applies to nonscientific technical or other specialized knowledge, IAW Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), though the MJ has high discretion to apply any or all of these tests and must act as a gatekeeper for scientific / technical / expert testimony. See Elmore, 56 M.J. 533 (NMCMA 2001) for a good discussion of this in context of handwriting analysis (a/k/a witchcraft).

M Opposing MRE 413 Evidence – This is evidence of similar crimes in sexual assault offenses. See MRE 414 for the same general rule for child molestation cases. Before admitting the evidence, the Court must initially find the existence of three elements.

The accused must be charged with an offense of sexual assault, the evidence proffered must be evidence that the accused committed another act of sexual assault, the evidence must be relevant under MRE 401 and 402. United States v. Wright, 53 M.J. 476 C.A.A.F. 2000); See also United States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998).

Before admitting evidence of a prior sexual assault under MRE 413, the Courts must apply a MRE 403 balancing test and examine factors including the strength of proof of the prior act, the probative weight of the evidence (ie. factual and circumstantial similarity), the potential for less prejudicial evidence, potential for distraction of the fact finder, the time needed for proof of the prior conduct, the temporal proximity between the charged and the prior incident, the frequency of the alleged similar crimes, the presence or lack of intervening circumstances, and the relationship between the parties. The military rule has a 5-day notice requirement. Some very old misconduct has been admitted under this rule United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997) (30 years ago, but no abuse of discretion). Judges love to admit this stuff for some reason, but it’s a great appellate issue, and appellate opinions have suggested these rules are vulnerable to constitutional attack.

M to Suppress Bank Records - The Right To Financial Privacy Act, 12 USC 3401-3422, says the govt has to do the following to get your bank records:

• Reasonably describe the records being sought
• Have customer authorization or an administrative subpoena, or search warrant, or judicial subpoena, or a formal written request (if the other options are not available)
• Show that the financial records are relevant to a legitimate law enforcement inquiry.
• Comply with several provisions as stated in 12 USC 3407; serve the customer the subpoena, a sworn statement attesting that the bank records are that of the customer's and information as to when and how to file a motion to quash the Gov'ts request.

The customer has 10 days from being served to file a motion to quash. The basis of the motion can be that the records are not relevant and/or that the Gov't has not complied with procedural requirements of the Act. Although the burden eventually rests with the Gov't to prove the records are relevant, if the basis of the motion is that the records are not relevant, then the customer's motion should state why. The military judge has jurisdiction to decide the issue. Curtin, 44 MJ 439

M in Limine 608(b) Impeachment Ev – Where you think the TC may attempt to impeach your witness on an improper basis, consider a motion in limine to take the element of surprise out of it. Under United States v. Robertson, 39 M.J. 211 (CMA 1994):

• (1) there must be a good-faith belief by the opponent that the conduct occurred; and
• (2) the conduct must relate to instances of untruthfulness. Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213 (1948). Acts of perjury, subornation of perjury, false statement, or criminal fraud, embezzlement or false pretense are . . . generally regarded as conduct reflecting adversely on an accused's honesty and integrity. Acts of violence or crimes purely military in nature, on the other hand, generally have little or no direct bearing on honesty and integrity. United States v. Weaver, 1 MJ 111, 118 n.6 (1975). See also United States v. Owens, 21 MJ 117, 123 (CMA 1985) ("intentional falsehood under oath" in a warrant-officer application); United States v. Page, 808 F.2d 723, 730 (10th Cir. 1987) (included within Fed.R.Evid. 608(b) would be forgery, uttering forged instruments, bribery, suppression of evidence, false pretenses, cheating, and embezzlement); United States v. Amahia, 825 F.2d at 181 ("Rule 608(b) will permit inquiry into the specific acts which may have led to an arrest if those acts related to crimen falsi, e.g., perjury, subornation of perjury, false statement, embezzlement, false pretenses"; United States v. Beros, 833 F.2d 455, 463 (3d Cir. 1987) (lying on marriage license). "Conduct" means underlying criminal acts, not arrest (or charging). United States v. Toro, 37 MJ 313, 315 (CMA 1993): an arrest is governmental conduct, not conduct of the witness. Harmless error.

M Limine 1001(b)(5) Evidence – TC wants to call the Cdr/SGM to say that your client has no rehab potential or should get a kick solely because of the offenses. No! Look at RCM 1001(b)(5), then:

Horner, 22 MJ 294 (CMA 1986) (testimony of BC that AC had no rehab potential based solely on the offense committed constituted UCI); Ohrt, 28 MJ 301 (CMA 1989) (similar holding, but the reasoning goes a level deeper, explaining the purpose of a punitive discharge and the foundation needed for an opinion on rehab potential); Bartoletti, 32 MJ 419 (CMA 1991) (error - but harmless error - for MJ to permit TC to present aggravation evidence of statistics regarding the incidence similar crimes, not factually connected to those of AC); Gordon, 31 MJ 30 (CMA 1990) (error to let AC's bde commander testify in aggravation that offense (accidental drowning off duty) damaged trust and cohesion among soldiers in the unit and resulted in negative publicity for the Army among local civilians.); Cherry, 31 MJ 1 (general comments about the offense and its impact on the service may be construed as a recommendation for a kick. This case deals with both aggravation and rehab potential.); Antonitis, 29 MJ 217 (testimony that AC would lose his security clearance due to the conviction is too close to saying that he should not be retained.); Kirk, 31 MJ 84 (CMA 1990) (talking to unit NCO's and reading the AC's training records was not enough foundation to permit the Cdr to testify about AC).

ATTACKS AGAINST THE PROSECUTION

M for Appropriate Relief, Unlawful Command Influence – Pursuant to Article 37 and expanded greatly by case law. Remedies can include dismissal, asking for a panel from an untainted area, or asking to disqualify the CG from convening courts. Could include (partial list only):

• Coercion of a commander into preferring charges. United States v. Jeter, 35 M.J. 442 (CMA 1992), cited in United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).
• Sudden change in a subordinate’s recommendation after pointed questions from a superior. United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996).
• OPD’s attended by panel members that comment on recent dispositions. United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001).
• Commander sends out a “get tough” letter regarding a certain kind of offense. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
• TC invokes “zero tolerance” command policy. United States v. Grady, 15 M.J. 275 (C.M.A. 1983).

Once the defense has raised an issue of unlawful command influence with some evidence, amounting to more than mere speculation, the burden shifts to the government to prove beyond a reasonable doubt that unlawful command influence either did not occur or did not affect the proceedings. United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). Once the TC knows of a UCI issue, the courts are liberal in permitting a CG to “cure” the problem by “clarifying” that the subordinate should make an independent decision on UCMJ matters. United States v. Stoneman, 56 M.J. something.

M to Dismiss for Prosecutorial Misconduct – Rarely granted. You need to prove:

• An ethical violation. Meek, 44 M.J. 1 (CAAF 1996)
• Bad intent. Rushatz, 30 MJ 525 (ACMR 1990); Grandy, 11 MJ 270 (CMA 1981)
• Prejudice. Morrison, 449 US at 365 (1980).

Remedy should be tailored to harm done, for example, if the misconduct was to obtain a statement from your client, the statement will likely be excluded. Any finding of pros misconduct will probably have SOCO implications. A common problem to watch for is the TC sending a flyer to the panel with no intent to prove all of the specs. This is error and may be grounds for a mistrial unless you waive it. Hall, 29 M.J. 386.

M to Dismiss for Violation of Article 10 – This means your client was in pretrial too long and the TC doesn’t have a good explanation for his slowness in getting to trial. See Kossman, 38 MJ 258, and other more recent cases. Under an old CMR case called Burton, an Article 10 violation was presumed if your client was in PTC over 90 days before trial. Now, there is no fixed limit short of the RCM 707 / 120 day clock. But violation of Article 10 means dismissal with prejudice! You might also want to check out Article 33.

M for New Article 32 Investigation – Failure to Produce Necessary Witness - United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976), reversible error where TC let key witness PCS OCONUS and failed to produce for 32. Timely df request, no telephonic testimony, no showing that military exigencies or extraordinary circumstances warranted excusal of the witness, who was also subject to military orders; United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976) (reversible error where prosecutrix in a rape case was not produced for the Article 32 hearing); United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978) (similar facts); United States v. Marrie, 45 M.J. 35 (C.A.A.F. 1995), (harmless error where gov’t failed to being civilian minor victim-witness).

M for New Article 32 Investigation – Improper Ex-Parte Contacts – The IO is considered a lay judge, bound by the ABA Canons of Judicial Ethics. Error is presumed where (1) there is any contact between someone in a prosecutorial function and the IO or (2) the IO has ex-parte contact with any person on a substantive matter. Though error is presumed, it can be rebutted by clear and convincing evidence that it was harmless, ie. a situation where the Legal Advisor gives the IO a copy of a reg or copies from the MCM. Cts are also very narrow in their definition of those who perform a prosecutorial function. United States v Payne, 3 M.J. 354 (CMA 1979); United States v. Grimm, 6 M.J. 890 (ACMR 1980)

M to Disqualify Panel Members - Dawkins, 2 M.J. 898 (CMR 76). ". . . [T]he federal courts have uniformly [held that a] juror is not disqualified merely because he has previously heard a similar case arising out of a separate and distinct set of circumstances even though. . . the same witnesses testifying in the second case also testified in the earlier one." Where the circumstances of the offense are the same and so are the witnesses, the issues are the same and an accused is entitled to have a juror excused on timely motion.

M to Challenge Panel Member – Actual or Implied Bias - United States v. Napoleon, 46 MJ 279, 282-83 (1997); United States v. Minyard, 46 MJ 229, 231 (1997); United States v. Daulton, 45 MJ 212, 217 (1996); United States v. Harris, 13 MJ 288, 292 (CMA 1982). Further, "we have urged a ‘liberal’ view on granting challenges for cause." United States v. Dale, 42 MJ 384, 386 (1995). Thus, "[m]ilitary judges must follow the liberal-grant mandate in ruling on challenges for cause…." Daulton, supra, quoting United States v. White, 36 MJ 284, 287 (CMA 1993).

• “The test for actual bias is whether any bias ‘is such that it will not yield to the evidence presented and the judge’s instructions.’" Napoleon, 46 MJ at 283, quoting United States v. Reynolds, 23 MJ 292, 294 (CMA 1987). Given the factual underpinning for testing actual bias, we review a military judge’s findings regarding actual bias for an abuse of discretion. Napoleon, 46 MJ at 283.
• "While actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public." Id., quoting Daulton, supra. The focus "is on the perception or appearance of fairness of the military justice system." Dale, 42 MJ at 386. At the same time, this Court has suggested that the test for implied bias also carries with it an element of actual bias. Thus, there is implied bias when "most people in the same position would be prejudiced." United States v. Armstrong, 54 MJ 51, 53-54 (2000), quoting United States v. Warden, 51 MJ 78, 81 (1999); United States v. Smart, 21 MJ 15, 20 (CMA 1985). See also United States v. Rome, 47 MJ 467, 469 (1998). Issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard than abuse of discretion. Armstrong, 54 MJ at 54, quoting Warden, supra.

United States v. Wiesen, No. 01-0134/AR, Crim. App. No. 9801770 (CAAF December 13, 2001) (reversible error where MJ failed to excuse COL who supervised 4 other members. Implied bias.)

ATTACKS AGAINST THE CHARGES AND SPECIFICATIONS

M for Bill of Particulars – RCM 906(b)(6). If you don’t know what to defend against or are afraid that the imprecision of the spec could result in double jeopardy later, ask for this. Not a tool of discovery. Cannot be used to repair a spec which is otherwise deficient.

M to Dismiss, Failure to State an Offense – Usually because the specs are fatally defective or misleading, or fail to plead a necessary fact. Compare carefully to the model spec, and NEVER raise this before arraignment, or the gov’t can fix it! Once the accused has been arraigned, minor changes can be made without the TC filing a motion, and major changes cannot be made at all if the DC objects. According to case law, any change that makes a defective spec sufficient is a major change per se. See RCM 603. But “a specification is sufficient ‘so long as [the elements] may be found by reasonable construction of other language in the challenged specification.’" United States v. Breechen, 27 M.J. 67 (C.M.A. 1988); United States v. Russell, 47 M.J. 412 (C.A.A.F. 1998) (specification that said AC “wrongfully” rather than “knowingly” received child porno not insufficient; DC and AC not misled and defense not hampered.

M to Dismiss – No Contact Order - The presumption exists that a superior’s order is lawful. Unger v. Ziemniak, 27 MJ 349. Military orders must have a valid military purpose and may not impermissibly infringe upon a service-member’s constitutional rights. Paragraph 14c(a)(iii) and (iv), Part IV, Manual for Courts-Martial, United States (2000 ed.) An order that is overly broad as to practically prevent all speech will be insufficient to sustain a conviction for failure to obey the order. United States v. Wysong, 26 C.M.R. 29 (1958). An order prohibiting the accused from contacting witnesses concerning the charges are unlawful as they interfere with the accused’s right to prepare a defense. United States v. Aycock, 35 C.M.R. 130 (1964). One the defense raises this issue, the prosecution bears the burden of proving that the specification states an offense. United States v. Jefferson, 14 M.J. 806 (A.CM.R. 1982).

M to Dimiss – No Drinking Order - "No Drink" orders are not enforceable under the UCMJ unless related to military duty, or provided as a condition of pretrial confinement or a reasonable condition of pretrial restriction. See United States v. Padgett, 48 M.J. 273 (1998), citing United States v. Blye, 37 M.J. 92 (CMA 1993) and United States v. Wilson, 12 USCMA 165, 30 C.M.R. 165 (1961).

M to Dismiss – Order to Perform Routine Duties - United States v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999) and United States v. Peaches, 25 M.J. 364 (C.M.A. 1987) hold that routine military duties may not be escalated into more serious disobedience offenses simply because of the authority of the person assigning the routine duties. There must be a deliberate defiance of a specific order. Hargove specifically applied to an order to sign in at regular intervals pursuant to a restriction order.

M to Dismiss for Multiplicity – United States v. Teters, 37 M.J. 370, (1993), cert. denied, 114 S.Ct. 919 (1994). Where one of the offenses is a lesser included offense of the other or whether the offenses have identical elements. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Where different proof is not required to prove each offense, they are multiplicious. COL Smith will probably dismiss one of the charges if you can find any case specific to the two offenses charged, holding they are multiplicious, even if it’s a pre-Teters case. I would also assert unreasonable multiplication of charges every time I file this, as an alternative basis for relief.

M to Dismiss for Unreasonable Multiplication of Charges -- In United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), the Court held that there is an unreasonable multiplication of charges were overreaching in prosecutorial discretion results in the accused’s punitive exposure being unreasonably increased. See also Discussion to R.C.M. 307(c)(4), R.C.M. 907 (b)(3)(B), and R.C.M. 1001(c).

M to Dismiss – SOFA Double Jeopardy – Article XXII, Para. 8 of the US-ROK SOFA says that if the Korean authorities have tried you client, regardless of the result, the US authorities can’t try him again for the same offense. The US retains the right to prosecute a “violation of rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of the Republic of Korea,” which could mean a lot of things but probably means a strictly military offense with a common nexus of fact with the previously-prosecuted Korean offense. United States v. Miller, 16 M.J. 169 (C.M.A. 1983) a Korea case, held that but for the declaration of martial law, for which there is a specific exception, that the AC would have standing to enforce a right under this international treaty. See also United States v. Green, 14 M.J. 461 (C.M.A. 1983). That’s the easy part. With the extreme differences in the US and Korean legal systems and how they charge and prove offenses, the hard part will be persuading the Judge that it’s the same offense. For example, what we would charge as possession, the Koreans will charge as purchasing without a license to deal in pharmaceuticals. Recommend you use a multiplicity or unreasonable multiplication of charges analysis.

M to Consolidate Specs – Larceny – MCM, para. 46(c)(1)(h)(ii), states that multiple larcenies at one time and place should be one spec, even if different owners. United States v. Jobes, 20 M.J. 506 (AFCMA 1985); Blockburger v. United States, 284 U.S. 299 (1932); United States v. Robinson, 17 M.J. 412 (C.M.A. 1984) (summary disposition); United States v. Anthony, 17 M.J. 412 (CMA 1984) (summary disposition), holding that submission of a single false document could not be the basis for charging for larceny, making a false claim, and presenting a false claim.

SENTENCE CREDIT

M for Sentence Credit – Pretrial confinement - Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed. United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (emphasis added). BUT see Smith, 56 MJ 290 (CAAF 2002), which denied appellant relief against a sentence of hard labor without confinement resulting in no sentence credit for pretrial confinement. The Court reasoned that the accused elected to inform the members that he had been in PTC and therefore they had considered it as a factor in mitigation on sentencing. Follows reasoning of Gammons, 51 M.J. 169 (C.A.A.F. 1999).

M for Sentence Credit – Restriction Tantamount to Confinement - Pretrial restriction can be so onerous that it becomes tantamount to confinement, thus entitling the confinee to confinement credit for the time of his restriction. United States v. Mason, 19 M.J. 274 (C.M.A. 1985); Allen. The determination of whether pretrial restriction is tantamount to confinement is based on the totality of the conditions imposed by the restriction. United States v. Smith, 20 M.J. 528 (C.M.A. 1985); United States v. Swan, 45 M.J. 672 (N.M.C.C.A. 1996). "Some of the relevant factors to be considered include: the nature of the restraint; the scope of the restraint; the types of duties performed during the restraint; and the degree of privacy enjoyed during the restraint." Id. at 677-678. If the conditions of restriction amount to a "substantial impairment of the basic rights and privileges enjoyed by service members," confinement credit is appropriate. Under United States v. Smith, 53 MJ 168, 173 (CAAF 2000), you may need to show that the gov’t had an intent to punish.

M for Sentence Credit – Restriction in violation of Article 13 or unnecessarily harsh conditions of confinement - Pretrial restriction, under certain circumstances, may constitute pretrial punishment as defined by Article 13. United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000). Theterms of the pretrial restriction must not be intended to punish or stigmatize the appellant while awaiting trial and the restriction terms must be incident to legitimate non-punitive command objectives in ensuring that he remains on post and was not a disruptive influence on the other soldiers in the unit. United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985); see also United States v. Larner, 1 M.J. 371 (C.M.A. 1976); United States v. Suzuki, 14 M.J. 491, 493 (C.M.A. 1983). AR 190-47 is a gold mine of reasons to demand credit under this basis or even RCM 305k. For an incredibly bad case on this, see Corteguera, No. 01-0421,Crim. App. No. 33067 (CAAF 2002)

M for Sentence Credit – Article 13 (humiliation of AC) - Article 13, UCMJ, also prohibits humiliation or degradation of accused before trial. Case law interprets Article 13 as permitting sentence credit as an appropriate remedy. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987) (AC and several others who tested positive were put in the “Peyote Platoon” and ridiculed. Deprivation of rank or insignia, comments in formations, stigmatization of AC with punitive intent may also count. See also United States v. Stamper, 39 M.J. 1097 (ACMR 1994).

M for Sentence Credit, RCM 305(k) - Under R.C.M. 305(k), the remedy for confinement in violation of R.C.M. 305 is one day of credit per day of confinement. Any violation of RCM 305 may be a basis for credit. Pretrial confinement is appropriate when it is foreseeable that the accused would not appear at trial, pretrial hearing, or investigation, or the prisoner would engage in serious criminal misconduct. R.C.M. 305(h)(2)(B)(iii). United States v. Doane, 54 M.J. 978 (A.F.C.C.A. 2001). The Military Judge may order additional credit as is just for abuses of discretion or harsh conditions of confinement. United States v. Larner, 1 M.J. 371 (C.M.A. 1976); United States v. Suzuki, 14 M.J. 491, 493 (C.M.A. 1983).

M for Pierce Credit - United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (where AC is punished at CM after being punished for same offense w/ Art 15, must be given complete credit for any nonjudicial punishment imposed: day-for-day, dollar-for-dollar, stripe-for-stripe. You can ask the MJ, the panel, or the CMCO for relief, but asking one waives consideration of the issue by the others. Gammons, 51 M.J. 169 (C.A.A.F. 1999). FN 5 in the Pierce case suggests a formula for converting punishments, which is generous but not mandatory.

• 1 day’s pay = 1 day of confinement; see United States v. Ridgeway, 48 M.J. 905 (ACCA 1998) for discussion of options available.
• 2 days’ restriction = 1 day of confinement
• 60 days of restriction w/o ED = 45 days of ED
• Where client has lost a stripe, credit includes the stripe and the difference in pay for the time between the Art 15 reduction and CM sentencing. This money can, in turn, be converted into confinement time.
• If there is a PTA, must say that credit will be applied against the unsuspended portion of the approved (NOT adjudged) sentence. U.S. v. Collins, 30 M.J. 991 (ACMR 1990); U.S. v. Williamson, 26 M.J. 835 (ACMR 1988). If PTA after application of Pierce credit could mean no jail time, consider asking the Convening Authority to defer the remaining confinement under RCM 1101(c) instead of taking the issue to the MJ or panel.

Pierce also holds that “nonjudicial punishment may not be used for any purpose at trial, such as impeachment (even of an accused who asserts that he has no prior misconduct); to show that the accused has a bad service record; or any other evidentiary purpose, MRE 404(b).”