U.S. v. Mosby, 56 M.J. 309

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Pretrial Punishment

1. the burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13

Trial Stages: Pretrial: Pretrial Punishment

1. the burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13
2. the question whether appellant is entitled to credit for a violation of Article 13 is a mixed question of fact and law; a military judge’s findings of fact, including a finding of no intent to punish, will not be overturned unless they are clearly erroneous; the ultimate question whether an appellant is entitled to credit for a violation of Article 13 will be reviewed de novo
3. the question of intent to punish is one significant factor in the judicial calculus for determining whether there has been an Article 13 violation
4. other than introducing evidence that appellant was placed in solitary confinement based on the charge alone, appellant has not introduced any evidence of an intent to punish; therfore, based on this record, the military judge’s findings were not clearly erroneous and, as a matter of law, that appellant was not entitled to additional sentence credit for an Article 13 violation

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question whether appellant is entitled to credit for a violation of Article 13 is a mixed question of fact and law; a military judge’s findings of fact, including a finding of no intent to punish, will not be overturned unless they are clearly erroneous; the ultimate question whether an appellant is entitled to credit for a violation of Article 13 will be reviewed de novo