United States v. Lamore ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, STEWART, and HOUTZ
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Michael T. LAMORE
Seaman Recruit (E-1), U.S. Navy
Appellant
No. 201900315
Decided: 20 April 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Ryan J. Stormer
Sentence adjudged 19 June 2019 by a general court-martial convened
at Naval Station Great Lakes, Illinois, consisting of a military judge
alone. Sentence approved by the convening authority: confinement for
five years and a dishonorable discharge. 1
For Appellant:
Lieutenant Gregory Hargis, JAGC, USN
Lieutenant Megan E. Horst, JAGC, USN
1 The convening authority suspended confinement in excess of three years pursu-
ant to a pretrial agreement.
United States v. Lamore, NMCCA No. 201900315
Opinion of the Court
For Appellee:
Lieutenant Kevin G. Edwards, JAGC, USN
Major Clayton L. Wiggins, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was found guilty, in accordance with his plea, of sexual assault
in violation of Article 120, Uniform Code of Military Justice [UCMJ], 10
U.S.C. § 920.
Appellant asserts two assignments of error [AOEs]: (1) that sentence re-
lief should be granted in light of the conditions of Appellant’s post-trial
custody; and (2) that there was a substantial omission in the record of trial
that created a presumption of prejudice that the Government did not rebut.
We find no prejudicial error and affirm.
I. BACKGROUND
Pursuant to a pretrial agreement, Appellant pleaded guilty and was con-
victed of one specification of sexually assaulting the victim, Ms. Sierra. 2 The
charge stems from Ms. Sierra’s report to the Antioch, Illinois, police in July
2018 that several months before Appellant had met her at a park in Antioch,
forced her into a portable toilet, and sexually assaulted her. After an investi-
gation, Antioch authorities declined to prosecute. The Naval Criminal Inves-
tigative Service then assumed investigative jurisdiction, and Appellant was
placed in pretrial confinement.
During his pretrial confinement at two civilian jails, Appellant was co-
mingled with post-trial inmates. As part of the pretrial agreement, the
convening authority agreed Appellant would receive an additional 15 days’
confinement credit, and Appellant agreed not to raise a motion for confine-
2 All names in this opinion, other than those of Appellant, the judges, and coun-
sel, are pseudonyms.
2
United States v. Lamore, NMCCA No. 201900315
Opinion of the Court
ment credit for violation of Rule for Courts-Martial [RCM] 305 and Articles
12 and 13, UCMJ, and to withdraw the motion he had previously filed with
the trial court.
After his conviction and sentencing, Appellant was returned to a civilian
correctional facility, where he was placed in a “protective custody” status.
The conditions of this status included housing Appellant in a single-
occupancy cell in a general population pod, not allowing him to comingle with
other prisoners, and allowing him one hour outside the cell each day when he
could use a phone, have video visitation, access entertainment and the
commissary, and use the showers. This status lasted for 13 days until Appel-
lant, after speaking with his defense counsel, complained about the situation,
and the facility was notified that placing Appellant in protective custody was
not in accordance with Navy policy and the contract between the Navy and
the correctional facility. Appellant was transferred to the prison’s general
population that same day.
Thereafter, Appellant filed a post-trial motion for additional confinement
credit on grounds of illegal post-trial punishment, arguing that the protective
custody was “inappropriately severe.” The Government responded to the
motion and included an affidavit from the correctional facility outlining the
conditions of the protective custody.
The military judge ruled on Appellant’s motion without a post-trial Arti-
cle 39(a), UCMJ, session. In his written ruling the military judge made
findings of fact consistent with the conditions listed in the affidavit from the
correctional facility. He concluded that while Appellant’s protective custody
did not rise to the level of an Eighth Amendment or Article 55, UCMJ,
violation, “[n]o legitimate government purpose or objective was served by
placing [Appellant] in [protective custody] post-trial.” 3 He nevertheless
denied the motion, concluding he did not have the authority to award con-
finement credit for such post-trial confinement issues.
The military judge’s written ruling was made part of the authenticated
record of trial; however, the post-trial filings by Appellant and the Govern-
ment on the issue were not attached to the record and thus were omitted
from the post-trial review process. After the convening authority’s action, 4
3 App. Ex. XLIII at 6.
4 The convening authority did not act until 149 days after Appellant’s sentencing
due, in large part, to the delay between the submission of the post-trial motion and
the military judge’s ruling.
3
United States v. Lamore, NMCCA No. 201900315
Opinion of the Court
and once the case was docketed for appellate review by this Court, we grant-
ed the Government’s motion to attach the post-trial filings by Appellant and
the Government to the record.
II. DISCUSSION
A. Post-Trial Custody and Sentence Relief
Appellant asserts that sentence relief should be granted in light of the
conditions of his post-trial custody. We review sentence appropriateness de
novo. 5
A court of criminal appeals [CCA] “may affirm only . . . such part or
amount of the sentence, as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved.” 6 This statutory grant of
authority gives us significant discretion in reviewing the appropriateness of
an approved sentence to ensure “that justice is done and that the accused
gets the punishment he deserves.” 7 As “[c]onfinement conditions may very
well alter an accused’s punishment into something worse than he deserves,” 8
we may “consider post-trial confinement conditions . . . even where the
allegations do not rise to the level of an Eighth Amendment or Article 55,
UCMJ, violation.” 9 However, our superior court has found that CCAs may not
grant clemency, 10 and do not have “unlimited authority . . . to grant sentence
appropriateness relief for any conditions of post-trial confinement of which
they disapprove,” but rather, the exercise of discretion in this area must be
based on a “legal error or deficiency.” 11
1. Legal error or deficiency
In Gay II, our superior court affirmed the CCA’s reliance on Article 66(c),
UCMJ, to find a sentence inappropriate where the appellant was placed in
5 See United States v. Baier, 60 M.J. 382, 383–84 (C.A.A.F. 2005).
6 UCMJ, Article 66(c), 10 U.S.C. § 866(c).
7 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
8 United States v. Jacinto, 79 M.J. 870, 891 (N-M. Ct. Crim. App. 2020).
9 United States v. Gay [Gay I], 74 M.J. 736, 743 (A.F. Ct. Crim. App. 2015), aff’d,
United States v. Gay [Gay II], 75 M.J. 264 (C.A.A.F. 2016).
10 United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
11 Gay II, 75 M.J. at 268-69.
4
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Opinion of the Court
solitary confinement through no fault of his own. 12 The CCA supported its
determination by acknowledging:
(1) there was no valid reason for placing [the appellant] in soli-
tary confinement; (2) avoiding additional Article 12 violations
was not an acceptable reason to place him in solitary confine-
ment; (3) the assertion that an Air Force official directed that
[the appellant] be placed in solitary was unrebutted; and,
(4) [the appellant] was easily transferred to a pod that did not
house foreign nationals once his unit complained of his treat-
ment. 13
The court found that “[t]hese reasons evidence[d] a legal deficiency in the
post-trial conditions to which [the appellant] was subjected.” 14
Similar to the facts in Gay II, Appellant’s post-trial confinement condi-
tions evidence a legal error or deficiency. The record shows that (1) Appellant
was placed in protective custody at the civilian facility due to no fault of his
own; (2) placing Appellant in post-trial protective custody was both unneces-
sary and resulted in him being treated differently than civilian prisoners; 15
and (3) Appellant was easily transferred to the general population once he
complained. Under these circumstances, we agree with the military judge’s
conclusion that “[n]o legitimate government purpose or objective was served
by placing [Appellant] in [protective custody] post-trial.” 16
2. Exhaustion of administrative remedies
Generally, “[a] prisoner must seek administrative relief prior to invoking
judicial intervention to redress concerns regarding post-trial confinement
12 Gay II, 75 M.J. at 268.
13 Id. (citations omitted).
14 Id.
15 See UCMJ art. 58, 10 U.S.C. § 858 (2019) (establishing that “[p]ersons . . . con-
fined in a penal or correctional institution not under the control of one of the armed
forces are subject to the same discipline and treatment as persons confined or
committed by the courts of the United States or of the State, District of Columbia, or
place in which the institution is situated.”); Gay II, 75 M.J. at 269 n.6 (finding the
CCA could have found legal error on that basis).
16 App. Ex. XLIII at 6.
5
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Opinion of the Court
conditions.” 17 “Absent some unusual or egregious circumstance this means
that the prisoner has exhausted the prisoner grievance system in his deten-
tion facility and that he has petitioned for relief under Article 138, UCMJ.” 18
In this case, while the record does not indicate that Appellant used the
correctional facility’s formal grievance system or Article 138, UCMJ, he did
call attention to the issue of his protective custody status, which the correc-
tional facility then acknowledged and corrected. At that point there is no
evidence the grievance process or Article 138 would have provided Appellant
any further meaningful relief and because the facility’s corrective action left
nothing remaining to “exhaust.” Instead, Appellant elected to avail himself of
the trial court’s continuing, pre-authentication jurisdiction and seek redress
through a post-trial motion, which thoroughly developed the record to allow
this Court to review the issue. 19 Thus, unlike in United States v. Wise, 20
United States v. Wagers, 21 and United States v. Jacinto, 22 the issue of Appel-
lant’s post-trial confinement conditions was litigated before the trial court,
and the military judge made specific findings of fact and conclusions that
allow this Court to review whether the conditions of Appellant’s post-trial
confinement resulted in the sentence being inappropriately severe. Accord-
ingly, because the issue of his post-trial confinement was litigated and the
record adequately developed, this Court will review sentence appropriateness
in light of the conditions of his post-trial custody.
3. Sentence relief
We find that Appellant’s post-trial confinement conditions were not so
egregious as to merit relief. In Gay II, cited by Appellant, the Court deter-
mined that sentencing relief was appropriate, in part, because solitary
confinement was ordered by Air Force officials in an effort to avoid an Article
17 United States v. Wise, 64 M.J. 468, 469 (C.A.A.F. 2007) (citing United States v.
White, 4 M.J. 469, 472 (C.A.A.F. 2001)); see also Jacinto, 79 M.J. at 891.
18 Wise, 64 M.J. at 469.
19In fact, the record in this case contains arguably much more information that it
would have if Appellant had simply attached a “grievance chit” and a summary of the
remedy to the record.
20 64 M.J. 468 (C.A.A.F. 2007).
21 No. 201600180, 2017 CCA LEXIS 112, at *14 (N-M. Ct. Crim. App. Feb. 23,
2017) (unpublished).
22 79 M.J. 870, 890 (N-M. Ct. Crim. App. 2020).
6
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Opinion of the Court
12, UCMJ, violation. 23 In this case Appellant was placed in protective custody
due to the civilian prison officials’ misunderstanding of the facility’s contract
with the Navy, not due to an intentional order from the military. Appellant’s
confinement conditions were also significantly less restrictive than those of
the appellant in Gay II, where the appellant’s conditions included being
stripped and searched, placed in shackles, and denied phone calls and visita-
tion. None of those conditions is present in this case. While during this 13-
day period Appellant could not comingle with other inmates and received less
time outside of his cell, he was provided a day room outside of his cell with
windows; use of a phone whenever outside his cell; video visits with family
and friends when outside his cell; no restraints; access to entertainment; a
regular meal schedule with food similar to other inmates’; and access to a
single-use shower. We find these conditions, while not identical to those in
general population, do not rise to the conditions the court in Gay II found
warranted relief. Here, we conclude sentencing relief is not warranted and
would amount to an inappropriate grant of clemency.
B. Substantial Omission and Prejudice
Appellant asserts the record of trial is incomplete, as the military judge
failed to attach the Defense post-trial motion, the Government response, and
the evidence attached to both. Whether a record of trial is incomplete is a
question of law which we review de novo.24
Article 54, UCMJ, requires a “complete record of proceedings” in any case
resulting in a discharge. 25 “The requirement that a record of trial be complete
and substantially verbatim in order to uphold the validity of a verbatim
record sentence is one of jurisdictional proportion that cannot be waived.” 26
Whether an omission is substantial can be a question of quality as well as
quantity. 27 Substantial omissions render a record of trial incomplete, raising
23 Gay II, 75 M.J. at 269.
24 United States v. Davenport, 73 M.J. 373, 376 (C.A.A.F. 2014).
25 10 U.S.C. § 854.
26 United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); see also RCM
1112(b)(1) (2019).
27 See United States v. Lashley, 14 M.J. 7, 9 (C.M.A. 1982).
7
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Opinion of the Court
a presumption of prejudice. 28 Insubstantial omissions do not raise a presump-
tion of prejudice or affect the record’s characterization as a complete one. 29
We have previously discussed that there are “two primary points in the
post-trial process during which prejudice could result from a record of trial
that has substantial omissions: (1) the [convening authority’s] action, and
(2) appellate review.” 30 Because the missing items were attached to the
record during appellate review, we focus solely on the omission at the conven-
ing authority’s action stage of the post-trial process. Appellant argues the
missing motions were substantial omissions because the military judge relied
on them to resolve Appellant’s post-trial motion. He further argues the
Government cannot rebut the presumption of prejudice raised by the omis-
sions because the uninformed nature of the SJA’s recommendation denied
Appellant “his or her full opportunity for corrective action or clemency from
the CA.” 31 We disagree.
The missing portions of the record were not “substantial” within the
meaning of Article 54, UCMJ. Prior to the SJA’s recommendation to the
convening authority, the record contained the military judge’s written ruling
on Appellant’s motion. This written ruling contained findings of fact and
conclusions of law that thoroughly addressed Appellant’s post-trial custody
status. While the record was missing Appellant’s motion and the Govern-
ment’s response, these portions were not of such quality and quantity to rise
to the level of a substantial omission. The written ruling of the military judge
was the crucial piece of the record that the SJA and the convening authority
had access to prior to taking action.
Even assuming arguendo the omission was substantial, the Government
has rebutted the presumption of prejudice. Appellant argues that the SJA’s
recommendation to the convening authority was uninformed because she did
not have the motions relied upon by the military judge and her recommenda-
tion simply “glossed over” the judge’s ruling. We find that argument without
merit. The record contained, and thus the SJA had access to, the military
judge’s ruling at the time of her recommendation, and the convening authori-
ty was able to exercise his duties consistent with RCM 1109(d). We will not
28 Id. at 8.
29 Henry, 53 M.J. at 111.
30 United States v. Underhill, No. 200700144, 2007 CCA LEXIS 306, at *8-9
(N-M. Ct. Crim. App. Aug. 9, 2007) (unpublished).
31 Id.8
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Opinion of the Court
second guess the actions of either the SJA or the convening authority under
that rule as long as the record shows (1) the convening authority consulted
with the staff judge advocate or legal advisor, 32 and (2) the convening author-
ity considered matters timely submitted under RCM 1106 and 1106A before
taking or declining to take action. 33 The record reflects that both were done in
this case.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 34
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
32 RCM 1109(d)(2).
33 RCM 1109(d)(3)(A).
34 UCMJ arts. 59, 66.
9