U.S. v. Katso, 77 M.J. 247

Trial Stages: Sentence and Punishment: Credits

1. in this case, where the accused was an adjudged and sentenced prisoner whose sentence to confinement had been ordered executed by the CA but where the CCA had set aside the accused’s conviction and sentence and the government had certified the case to the CAAF, the CCA erred in applying the procedures and penalties of RCM 305 crafted for pretrial confinement to the accused’s post-trial confinement while the government appeal was pending; specifically, the CCA erred in determining that the accused was entitled to a sua sponte continued confinement hearing within seven days of the government’s certification to the CAAF and day-for-day credit for each day served in confinement between the certification and the date of the continued confinement hearing

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in this case, where the accused was an adjudged and sentenced prisoner whose sentence to confinement had been ordered executed by the CA but where the CCA had set aside the accused’s conviction and sentence and the government had certified the case to the CAAF, the CCA erred in applying the procedures and penalties of RCM 305 crafted for pretrial confinement to the accused’s post-trial confinement while the government appeal was pending; specifically, the CCA erred in determining that the accused was entitled to a sua sponte continued confinement hearing within seven days of the government’s certification to the CAAF and day-for-day credit for each day served in confinement between the certification and the date of the continued confinement hearing

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certification to the CAAF under Article 67(a)(2), UCMJ, is a question of law, that the CAAF reviews de novo.
2. (Article 57a(c), UCMJ, governs the treatment of convicted prisoners where the sentence to confinement has been ordered executed, but in which review of the case under Article 67(a)(2)) is pending; Article 57a(c), UCMJ, permits the Secretary concerned to defer further service of the sentence to confinement while that review is pending; in other words, convicted prisoners mayseek deferral of confinement pending review of a decision favorable to the accused certified to the CAAF by TJAG and the relevant Secretary may grant such deferral and order the prisoner released)
3. (where a prisoner whose sentence to confinement has been ordered executed, but in which review of the case under Article 67(a)(2)) is pending, seeks a continued confinement hearing, the language of Article 57a(c), UCMJ, is broad enough to permit such a hearing so that the relevant Secretary can determine whether to release the prisoner in accordance with Article 57a(c), UCMJ; but the statute is silent on how or when the determination to release is to be made, and neither the President nor a majority of the service Secretaries have promulgated procedural rules or remedies implementing the statute to address these questions)

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even assuming arguendothat the government should have held a continued confinement hearing sua sponte, within seven days or otherwise, after the CCA set aside the accused’s conviction and sentence to confinement but the government certified the case to the CAAF, the accused suffered no prejudice from its failure to do so; a continued confinement hearing was held when the accused requested it, and that hearing concluded that the accused was not entitled to be released; thus, in the end, because the accused’s sentence was effectively restored by the CAAF, the time the accused served between certification and the confinement hearing was in accordance with his adjudged and approved sentence

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

1. whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certification to the CAAF under Article 67(a)(2), UCMJ, is a question of law, that the CAAF reviews de novo