U.S. v. Rendon, 58 M.J. 221

Trial Stages: Pretrial: Pretrial Restraint

1. both "apprehension" and "custody" are terms of art in military law; apprehension is the taking of a person into custody; custody may include physical restraint, albeit temporary; 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; pretrial confinement is a form of pretrial restraint
2. military apprehension, custody, and pretrial confinement involve physical restraint; absent some military necessity requiring a different rule, Fourth Amendment considerations apply to these forms of restraint; however, CAAF finds no basis upon which to extend the Fourth Amendment and other procedural protections embodied in R.C.M. 305 to pretrial restraint, including restriction tantamount to confinement, that do not include physical restraint

Trial Stages: Sentence and Punishment: Credits

1. R.C.M. 305 applies to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement
2. on its face, R.C.M. 305 applies to pretrial confinement; there is no support in R.C.M. 305 for applying R.C.M. 305(k) to any lesser form of restraint; further, the nature of pretrial confinement or confinement served encompassed by the R.C.M. 305 is clear: pretrial confinement is physical restraint depriving a person of freedom pending disposition of offenses; CAAF finds no evidence that the President intended the procedural protections or the credit provided in R.C.M. 305 to apply to anything other than the physical restraint attendant to pretrial confinement; CAAF's conclusion is buttressed by the fact that the President has not seen fit to expand the coverage of R.C.M. 305 despite the many years that restriction tantamount to confinement has required a day-for-day credit under Mason
3. restriction tantamount to confinement does not, per se, trigger, justify or require application of R.C.M. 305; the rule is applicable to restriction tantamount to confinement only when the conditions or circumstances attendant to that restriction meet the definitional requirements for confinement; in other words, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his or her freedom; anything less is outside the scope of R.C.M. 305
4. CAAF rejects the notion that there are unique moral and disciplinary considerations present in the military which require a unique application of the Fourth Amendment or R.C.M. 305 to restriction tantamount to confinement
5. military apprehension, custody, and pretrial confinement involve physical restraint; absent some military necessity requiring a different rule, Fourth Amendment considerations apply to these forms of restraint; however, CAAF finds no basis upon which to extend the Fourth Amendment and other procedural protections embodied in R.C.M. 305 to pretrial restraint, including restriction tantamount to confinement, that do not include physical restraint

Trial Stages: Sentence and Punishment: Forfeitures › Adjudged

1. Rule for Courts-Martial 1003(b)(2) requires that, unless total forfeiture is adjudged, the amount of forfeitures adjudged be stated in exact dollars

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

1. CAAF reviews de novo whether an accused is entitled to a pretrial confinement credit; the interpretation of a provision of the MCM is a matter of law also to be reviewed de novo; to interpret R.C.M. 305 and particularly whether R.C.M. 305(k) applies to restriction tantamount to confinement, CAAF looks at the plain language of the MCM and construes its provisions in terms of its object and policy, as well as the provisions of any related rules, in order to ascertain the intent of the President; if the MCM is unclear, CAAF looks next to the drafters’ analysis