United States v. Wardle , 58 M.J. 156 ( 2003 )

Chief Judge CRAWFORD

delivered the opinion of the Court.

Pursuant to his pleas, Appellant was convicted of eight specifications of larceny of military property, four specifications of forgery, and one specification of money laundering, in violation of Articles 121, 123, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 921, 923, 934 (2002). The convening authority approved a sentence of a bad-conduct discharge, 30 months’ confinement, and reduction to pay grade E-2. The Air Force Court of Criminal Appeals affirmed the findings and sentence, and we granted review of the following issue:

WHETHER APPELLANT’S PRETRIAL CONFINEMENT WAS ILLEGAL BECAUSE THE DECISION TO CONFINE HIM WAS BASED ON CONCERNS THAT HE WOULD COMMIT SUICIDE RATHER THAN THE CRITERIA SET FORTH IN R.C.M. 305(h)(2)(B)(iii) AND THAT LESSER FORMS OF RESTRAINT WERE NOT CONSIDERED.

For the reasons set forth below, we affirm.

FACTS

Appellant learned on January 10, 2000, that he was under investigation for stealing approximately $70,000 from the Government. That same day, Appellant’s commander, Major Elizabeth May, called him and ordered him to report for duty the following morning. Appellant failed to report as instructed, and instead checked himself into a local hotel where he slit his wrists. After Appellant returned home of his own volition, his unit took him to the hospital to be treated for the wounds on his wrists. Appellant was then transferred to the Veteran’s Administration (VA) hospital for a two week psychiatric observation and assessment.

On the day of Appellant’s release from the VA hospital, Major May ordered him into pretrial confinement. In the memorandum explaining her decision, Major May wrote:

I believe that pre-trial confinement at Tyndall AFB is appropriate in this case. I do not believe lesser forms of restraint are adequate. SSgt Wardle has demonstrated he will disregard orders, as he demonstrated by not reporting to my office as ordered at 0700 hours on 11 January 2000. Any other form of restraint would require SSgt Wardle abiding by some form or [sic] order by me. It is foreseeable SSgt Wardle will not appear at trial if not placed in pretrial confinement. He fled and then attempted suicide soon after learning of the investigation and nature of allegations against him. I anticipate SSgt Wardle will be tried by a court-martial. My experience with other members facing a court-martial is that the stress becomes even greater as the process draws closer to trial. Since SSgt Wardle fled at this early stage, I feel the potential exists he will not appear for trial if not placed in pre-trial confinement.

She subsequently testified as to her added concern that Appellant had formulated an escape plan and had set aside a significant amount of money. The magistrate reviewing Major May’s order determined that confinement was warranted because Appellant was a risk to himself and because less severe forms of restraint were inadequate to insure his presence at trial.

Appellant moved for relief at trial, contending that the magistrate abused his discretion by continuing Appellant’s pretrial confinement. The military judge heard evidence on the issue of Appellant’s pretrial confinement, and concluded that such confinement was proper.

DISCUSSION

This Court reviews a military judge’s ruling on the legality of pretrial confinement for abuse of discretion. United States v. Gaither, 45 M.J. 349, 351-52 (C.A.A.F.1996). There is an abuse of discretion when a military judge applies an erroneous view of the law. United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F.1997); United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995). An appellate court “should limit its review to the facts [that were] before the deciding official.” Gaither, 45 M.J. at 351. Applying these principles, we conclude the military judge did not abuse his discretion for the reasons set forth below.

The military judge in this case made the following findings of fact: “[T]he court incorporates by reference and finds by a preponderance of the evidence as facts the facts set forth by the government in paragraphs 1 through 5 of its response[.]” Among the facts identified in the Government’s brief that the military judge incorporated were the following:

Early on the morning of 10 Jan 00, SSgt Wardle checked into a Pensacola area hotel using his government charge card. He failed to report for duty as instructed at 0700 hours. Sometime that morning, he cut his wrists. He remained at the hotel that morning and most of the afternoon, never informing his spouse or his unit regarding his whereabouts. At approximately 1840 hours, SSgt Wardle returned home. SSgt Wardle’s wife saw SSgt Wardle’s wrists and also found a note in his wallet stating, “Please forgive me again. I love you.” She contacted the unit, who brought SSgt Wardle to the hospital. SSgt Wardle required 19 stitches to close the wound on his wrist. After treatment at Pensacola NAS, SSgt Wardle was admitted to the VA Hospital at Gulfport, Mississippi for observation and a suicide watch. He remained at the VA hospital in a secure ward until 24 Jan 00. SSgt Wardle’s discharge diagnosis was acute depression.

Maj May placed SSgt Wardle into pretrial confinement because she had reasonable grounds to believe that SSgt Wardle stole money from the government and because SSgt Wardle posed a threat to himself and a risk for flight. Specifically, SSgt Wardle failed to appear for duty on 10 Jan 00 as ordered. Additionally, he tried to kill himself. Maj May reasoned that, based upon her experience with past members facing trial, SSgt Wardle would face even greater stress as the court martial process progressed, increasing the chance that he would flee or again attempt to harm himself.

A neutral and detached magistrate, Col James Foster, conducted a review of SSgt Wardle’s pretrial confinement on 25 Jan 00. After reviewing the evidence in the case and hearing the testimony of Maj May and [a special agent], Col Foster recommended continuation of pretrial confinement. Col Foster found that reasonable grounds existed to believe SSgt Wardle committed the offenses of larceny and forgery. Further, Col Foster determined, based upon SSgt Wardle’s diagnosis of depression and suicide attempt, that lesser forms of restraint were inadequate to ensure SSgt Wardle’s appearance at trial.

The military judge also endorsed the reasoning set forth in the Government’s brief, determined that a preponderance of the evidence supported the magistrate’s decision, and held that the magistrate did not abuse his discretion in finding Appellant’s pretrial confinement to be appropriate.

Article 10, UCMJ, 10 U.S.C. § 810 (2002), allows pretrial confinement “as circumstances may require” for persons subject to and charged under the UCMJ. Rule for Courts-Martial 305 states that an accused may be held in pretrial confinement if his commander has probable cause, or reasonable grounds, to believe that:

(i) An offense triable by a court-martial has been committed;

(ii) The prisoner committed it; and

(iii) Confinement is necessary because it is foreseeable that:

(a) The prisoner will not appear at trial, pretrial hearing, or investigation, or

(b) The prisoner will engage in serious criminal misconduct; and

(iv) Less severe forms of restraint are inadequate.

Rule for Courts-Martial 305(h)(2)(B)[herein-after R.C.M.] (emphasis added). Germane to the issue at hand is the rule’s endorsement of pretrial confinement in view of a likelihood that “[t]he prisoner will not appear at trial, pretrial hearing, or investigation” and the inadequacy of less severe forms of restraint.

In adopting as his own the facts described above, the military judge in effect confirmed that Appellant was a flight risk and that less severe forms of restraint were inadequate. The facts adopted by the military judge that specifically addressed flight risk and the inadequacy of less severe forms of restraint were as follows:

Early on the morning of 10 Jan 00, SSgt Wardle checked into a Pensacola area hotel [and] failed to report for duty as instructed at 0700 hours. He remained at the hotel that morning.and most of the afternoon, never informing his spouse or his unit regarding his whereabouts.

... Maj May placed SSgt Wardle into pretrial confinement because she had reasonable grounds to believe that SSgt Wardle ... posed ... a risk for flight. ... Maj May reasoned that ... SSgt Wardle would face even greater stress as the court martial progressed, increasing the chance that he would flee.

A neutral and detached magistrate ... determined that lesser forms of restraint were inadequate to ensure SSgt Wardle’s appearance at trial.

These adopted facts reveal the reasonable concern that Appellant, having already fled once upon learning of the investigation into his alleged theft, might again flee and fail to appear at trial. The facts further reveal the conclusion that this risk rendered less severe forms of restraint inadequate. As R.C.M. 305 authorizes pretrial confinement on these grounds, the military judge properly, albeit by incorporating the Government’s brief, approved Appellant’s pretrial confinement.¹

To be clear, suicide and flight risk were not entirely independent factors in this case. A predominant concern throughout the proceedings was that Appellant’s suicide attempt rendered him a flight risk. This concern characterized Major May’s decision, the magistrate’s review, and the military judge’s ruling. However, we need not reach the issue of whether suicide risk in this case, or under other circumstances, would warrant pretrial confinement. In light of the other factors cited by Major May, including the amount of money Appellant had taken and his failure to report to duty at 0700 (which was only later followed by an attempted suicide with an undetermined predicate), Appellant established himself as a flight risk within the meaning of R.C.M. 305.

CONCLUSION

The decision of the United States Air Force Court of Criminal Appeals is affirmed.

1 . We note, however, that while the military judge’s incorporation by reference of the facts listed in the Government’s brief lawfully sustained Appellant’s pretrial confinement on the bases of flight risk and the inadequacy of lesser forms of restraint, the military judge’s identification of these bases could have been more apparent.