United States v. McNutt, C.A.A.F. (2005)

UNITED STATES, Appellee
v.
Eric M. McNUTT, Private (E-2)
U.S. Army, Appellant
No. 04-0295
Crim. App. No. 20020022
United States Court of Appeals for the Armed Forces
Argued November 8, 2004
Decided September 27, 2005
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON and ERDMANN, JJ., joined. CRAWFORD and BAKER, JJ., each
filed a separate opinion, concurring in part and dissenting in
part.
Counsel
For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief); Colonel Robert D. Teetsel and Captain Terri
J. Erisman.
For Appellee: Captain Timothy D. Litka (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and
Lieutenant Colonel Mark L. Johnson (on brief); Lieutenant
Colonel Margaret B. Baines.
Military Judge:
Robert L. Swann
This opinion is subject to revision before final publication.
United States v. McNutt, No. 04-0295/AR
Chief Judge GIERKE delivered the opinion of the Court.

Following the trial of Private Eric M. McNutt, the military
judge met with defense and Government counsel to critique their
performance, in what is often called a Bridging the Gap
session.1
During that session, the military judge voluntarily
disclosed how he determined the length of Appellants sentence.

The military judge explained that he sentenced Appellant to
seventy days of confinement rather than sixty days because he
was aware of the correctional facilities policy of granting
five days of confinement credit per month for sentences that
include less than twelve months of confinement.2
The United
States Army Court of Criminal Appeals affirmed Appellants

sentence,3 finding that the military judges knowledge about the
Army policy was extraneous but properly within the common
knowledge of a military judge and that Military Rule of Evidence
Bridging the Gap sessions, common in Army practice, are posttrial meetings intended to be used as professional and skill
development for trial and defense counsel. See United States v.
Copening, 34 M.J. 28, 29 n.* (C.M.A. 1992).
2
Therefore, we granted review of the following issue:
Whether the military judge erred in considering the
collateral administrative effect of the Army Regional
Correctional Facilities policy of granting a service
member five days of confinement credit per month for
sentences which include less than twelve months of
confinement in adjudging Appellants sentence.
60 M.J. 122 (C.A.A.F. 2004) (order granting review).
3
United States v. McNutt, 59 M.J. 629 (A. Ct. Crim. App. 2003).
2
(M.R.E.) 606(b) did not provide a basis for impeaching

Appellants sentence.4
We hold that the military judge improperly considered the
collateral administrative effect of the good-time policy in
determining Appellants sentence and this error prejudiced
Appellant.
Accordingly, the decision of Army Court of Criminal
Appeals is reversed as to sentence and the case is remanded to

that court to provide the appropriate relief in light of
Appellants improper confinement for ten days.
BACKGROUND
Appellant was stationed at Fort Campbell, Kentucky.
On
January 8, 2001, Appellant left his unit without permission and

remained absent until February 2, 2001.
On February 20, 2001,
Appellant again absented himself without authority and returned

to his hometown of Belton, Missouri.
About a month later, he
surrendered to military authorities on March 19, 2001, at Fort

Campbell, Kentucky.
Appellant remained under military control,
awaiting disposition, until he absented himself without

authority a third time on April 27, 2001.
4
He was absent until
Accordingly, we also granted review of this issue:

Whether the Army Court of Criminal Appeals erred in holding
that there was no evidence of extraneous prejudicial
information improperly brought to the attention of the
sentencing authority and no basis for impeaching
Appellants sentence under Mil. R. Evid. 606(b).
60 M.J. 122 (C.A.A.F. 2004)(order granting review).
he was apprehended at his house in Belton by the County Sheriff

on December 5, 2001.
Appellant was charged with one
specification of desertion terminated by apprehension, and two

specifications of unauthorized absence, in violation of Articles
85 and 86 of the Uniform Code of Military Justice (UCMJ).5
Pursuant to Appellants pleas, the military judge found him
guilty and sentenced Appellant to confinement for seventy days,
a bad-conduct discharge, forfeiture of $500 pay per month for
three months, and reduction to pay grade E-1.
After Appellants court-martial, Captain (Cpt) Shahan,
Appellants trial defense counsel, submitted a letter to the
convening authority pursuant to Rule for Courts-Martial (R.C.M.)
1105, asserting that the military judge erred in formulating the
length of confinement.6
In the letter, Cpt Shahan asserted that
during the Bridging the Gap session with counsel after

Appellants sentencing, the military judge told trial counsel
and defense counsel that he wanted to ensure Appellant actually
10 U.S.C. 885, 886 (2002).

See R.C.M. 1105, 1107 (convening authority must consider
clemency matters submitted by accused before taking final action
on sentence).
6
served sixty days of confinement.7
Cpt Shahan asked the
convening authority to disapprov[e] 10 days of the adjudged

confinement because the military judge had inappropriately
considered good-time credit when determining Appellants
sentence.
Specifically, the defense counsel averred:
After the guilty plea, the military judge informed the

trial counsel, Cpt Gisela Westwater, and me, that the
reason he sentenced Pvt McNutt to 70 days was because he
knew Pvt McNutt would receive 10 days of good time
credit, and that he wanted to be sure that Pvt McNutt
served 60 actual days.
Further, Cpt Shahan stated that [i]t is common knowledge in the
military justice system that the Army Regional Corrections
Facilities (RCFs) credit service members with 5 days per month
of good time on sentences of 12 months or less.
Cpt Shahan
asserted that, based on United States v. McLaren,8 it is improper

for the military judge or panel members to consider collateral
issues such as good-time credit.
In affirming the findings and sentence, the Army Court of
Criminal Appeals noted that Appellant could not impeach his
sentence because none of the three exceptions to the M.R.E.
The military judges statements made during the Bridging the

Gap session were first asserted by Appellant in his clemency
submission to the convening authority. Appellate Government
counsel did not deny that the statements were made when the case
was before the Army Court of Criminal Appeals, a fact
specifically noted by that court. See McNutt, 59 M.J. at 631.
And now before our Court, the unrebutted statements continue to
be unchallenged by appellate Government counsel.
8
34 M.J. 926 (A.F.C.M.R. 1992).
5
606(b)9 applied.
Specifically, the lower court stated that if
the military judge improperly considered extraneous

information, then prejudice towards Appellant would be
presumed.
The Army Court opined that because the Army
regulation regarding good-time credit was not mentioned at

trial, admitted into evidence, or judicially noticed, the
information that the military judge relied on was extraneous.10
However, the lower court then concluded that knowledge of the
Armys good-time policy was within the general and common
knowledge any military judge brings to deliberations.11
Therefore, because the military judge did not rely on improper
extraneous information, there was no basis for impeaching
[A]ppellants otherwise lawful and appropriate sentence.12
M.R.E. 606(b) prohibits a court member from testifying as to

any matter or statement made during deliberations or to the
effect of anything upon the members mind, emotions, or mental
processes in deciding the findings or sentence, with three
exceptions. [A] member may testify on the question whether
extraneous prejudicial information was improperly brought to the
attention of the members . . . , whether any outside influence
was improperly brought to bear upon any member, or whether there
was unlawful command influence.
10
McNutt, 59 M.J. at 632.
11
Id.
12
Id. at 633.
DISCUSSION
I.
The military judge erred in considering the Armys good-time
policy in assessing Appellants sentence

In general, courts-martial [are] to concern themselves
with the appropriateness of a particular sentence for an accused
and his offense, without regard to the collateral administrative
effects of the penalty under consideration.13
Therefore, when
military judges are asked by members about possible collateral

consequences of a particular sentence, the appropriate reply
ordinarily is to reaffirm the idea that collateral consequences
are not germane.14
The reason for the preference is that the
purported effect of a collateral [consequence] cannot be used to

becloud the question of an accuseds guilt or innocence.15
To
ignore it would mean that [military judges] would be required

to deliver an unending catalogue of administrative information
13
United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988)

(quoting United States v. Quesinberry, 12 C.M.A. 609, 612, 31
C.M.R. 195, 198 (1962)).
14
Id. (stating that the impact of a punitive discharge on
retirement benefits is a collateral consequence that should not
influence the members decision on the accuseds sentence). See
also United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R.
176, 180 (1959) (stating that the sentences in other cases
cannot be given to court-martial members for comparative
purposes).
15
Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198 (holding that
members should not be informed of the specific consequences of a
bad-conduct discharge).
7
to court members. . . . [T]he waters of the military sentencing

process should [not] be so muddied.16
Although military judges and members should not generally
consider collateral consequences in assessing a sentence, this
is not a bright-line rule.17
In certain circumstances,
therefore, it may be appropriate for the military judge to

instruct on collateral matters.
18
In deciding whether the
military judge erred in giving such instructions, we will take a

flexible approach focusing on the military judges
responsibility to give legally correct instructions that are
tailored to the facts and circumstances of the case.19
For
example, the availability of parole and rehabilitation programs
16
Id.
United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000).
18
See, e.g., United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F.
2001) (stating that military judges should instruct on the
impact of a punitive discharge on retirement benefits, if there
is an evidentiary predicate for the instruction and a party
requests it. . . . They may deny a request for such an
instruction only in cases where there is no evidentiary
predicate for it or the possibility of retirement is so remote
as to make it irrelevant to determining an appropriate
sentence.). Additionally, instructions are routinely given on
the other consequences of a punitive discharge. See, e.g.,
United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003)
(affirming the military judges refusal to instruct the members
that a punitive discharge was an ineradicable stigma, where he
adequately advised the members that a punitive discharge was a
severe punishment, that it would entail specified adverse
consequences, and that it would affect Appellants future with
regard to his legal rights, economic opportunities, and social
acceptability (internal quotations omitted)).
19
Duncan, 53 M.J. at 499 (internal quotations and citation
omitted).
17
are issues of general knowledge and concern, and as such they

may be instructed upon, especially when requested by the
members.20
However, in such a situation, the military judge
should then instruct the members that although the possibility

of parole exists in the military justice system, they could not
consider it in arriving at an appropriate sentence for [the]
appellant.21
Similarly, in this case, the general preference for
prohibiting consideration of collateral consequences is
applicable to the military judges consideration of the Army
good-time credits.22
Each accused deserves individualized
consideration on punishment.
Thus, proper punishment should be
determined on the basis of the nature and seriousness of the

offense and the character of the offender, not on many variables
not susceptible of proof.23
In other words, sentence
determinations should be based on the facts before the military

judge and not on the possibility that Appellant may serve less
time than he was sentenced to based on the Armys policy.
Moreover, good-time credit is awarded as a consequence of the
20
Id. at 500 (citing United States v. Greaves, 46 M.J. 133, 139

(C.A.A.F. 1997)).
21
Id.
22
See United States v. Howell, 16 M.J. 1003 (A.C.M.R. 1983)
(Naughton, J., concurring) (finding it improper for the trial
counsel to argue that the appellant would not serve the full
confinement time adjudged by the members because of good-time
credit).
23
Mamaluy, 10 C.M.A. at 107, 27 C.M.R. at 181.
convicted servicemembers future behavior - behavior that may

or may not take place.
Therefore, the possibility of good-
time credit should not be considered by the members or the

military judge when deciding what sentence is appropriate.
We agree with the lower court that, practically, the
military judge could not be precluded from being aware of the
Army policy because it falls within his general knowledge of the
legal system.
But this does not mean that he should consider it
in determining Appellants sentence.
We hold that the military
judge erred in considering the Armys good-time credit policy

when he assessed Appellants sentence.
II.
Military Rule of Evidence 606(b) does not apply to military
judges
The Army Court of Criminal Appeals appropriately cautioned
that the core of the deliberative process remains privileged,
and military judges should refrain from disclosing information
during Bridg[ing] the Gap sessions concerning their
deliberations, impressions, emotional feelings, or the mental
processes used to resolve an issue before them.24
However, the
Army Court affirmed Appellants sentence by relying on M.R.E.
24
McNutt, 59 M.J. at 633.

10
606(b) and our holding in United States v. Straight.25
We
conclude that M.R.E. 606(b) applies to court members only and,

thus, does not apply to protect the statement of the military
judge in this case when he voluntarily disclosed that he
considered improper information in determining Appellants
sentence.26
A.
The plain meaning of M.R.E. 606(b)
The task of determining the meaning of M.R.E. 606(b) and to

whom it should apply begins with a reading of the plain language
of the rule.27
Notably, the plain meaning of M.R.E. 606 is that
it applies to the competency of [a] court member as [a]

witness.
M.R.E. 606(b) does not include any language that
indicates it applies to a trial by military judge alone, and the

discussion following the rule does not address the issue.28
25
As
42 M.J. 244, 250-51 (C.A.A.F. 1995)(holding that members

statements made during deliberations about the possibility that
the accused might be paroled did not fall into one of the
exceptions to the M.R.E. 606(b) prohibition and thus, they were
not competent to impeach the accuseds sentence).
26
Our holding in this case in no way implies that the mental
deliberations of military judges are not protected or that the
decision-making processes of military judges are more open to
scrutiny than the decision-making processes of members. We hold
only that M.R.E. 606(b) is not the vehicle to protect those
mental processes of military judges.
27
See United States v. Ron Pair Enter., 489 U.S. 235, 241 (1989)
(The task of resolving the dispute over the meaning of [a
statute] begins where all such inquiries must begin: with the
language of the statute itself . . . . [I]t is also where the
inquiry should end, for where . . . the statutes language is
plain, the sole function of the courts is to enforce it
according to its terms. (citations omitted)).
28
See Straight, 42 M.J. at 250-51.
11
the Supreme Court has repeatedly emphasized, [i]t is well

established that when the statutes language is plain, the sole
function of the courts -- at least where the disposition
required by the text is not absurd -- is to enforce it according
to its terms.29 Had the drafters of the rule wanted to use
broader language such as trier of fact [to include judges,
juries, and arbiters], they could have easily done so.30
Moreover, M.R.E. 605 explicitly addresses the competency of
a military judge as a witness.
Similar to subsection (a) of
M.R.E. 606, M.R.E. 605(a) states that a military judge may not
testify as a witness at a court-martial over which he is
presiding.
But M.R.E. 605 does not include a subsection (b)
that mirrors the language in M.R.E. 606(b), which protects

members deliberations.
Given the absence of such a provision,
it can be inferred that the drafters of said rule understood

that there were certain extraordinary situations in which a
29
Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)

(quoting Hartford Underwriters Ins. Co. v. Union Planters Bank,
N.A., 530 U.S. 1, 6 (2000)). Principles of statutory
construction are used in construing the Manual for CourtsMartial, United States. United States v. Lucas, 1 C.M.A. 19,
22, 1 C.M.R. 19, 22 (1951).
30
Stewart v. Southeast Foods, Inc., 688 So.2d 733, 735-36 (Miss.
1996) (holding that a reading of Miss. R. Evid. 606(b), which is
substantially similar to Fed. R. Evid. 606(b), indicates that
the rule applies to jurors only and that Miss. R. Evid. 605
applies to judges).
12
judge may be called upon to explain his verdict or rulings in a

subsequent proceeding.31
B.
An analysis of the precedent applying M.R.E. 606(b)
In deciding that M.R.E. 606(b) does not apply to protect

the voluntary disclosure of the military judge in this case, we
are faced with precedent from this Court that is inconsistent
with our holding.32
We conclude that Rice and Gonzalez
misconstrued the case law cited to support the holdings in those

cases.
Additionally, the circumstances of the cases that this
Court relied on in Rice and Gonzalez are factually

distinguishable from the situation in this case.
To the extent
that Gonzalez and Rice conflict with the holding of this case,
we now overrule them.
In asserting that the appellant was attempting to
accomplish the precise inquiry into the trial judges mind
which is prohibited by Mil. R. Evid. 606,33 the Court in Rice
31
Id. at 735.
See United States v. Rice, 25 M.J. 35, 37-38 (C.M.A. 1987)
(holding that the military judge did not impermissibly rely on
extraneous prejudicial information in sentencing the accused to
life imprisonment); United States v. Gonzalez, 42 M.J. 373, 37475 (C.A.A.F. 1995) (per curiam) (following Rice to conclude that
the military judges statement concerning his deliberative
processes at the accuseds original sentencing could not be
considered during a post-trial inquiry into the basis for the
sentence he imposed).
33
Rice, 25 M.J. at 38.
32
13
cited Washington v. Strickland,34 and Proffitt v. Wainwright.35

In Washington, a U.S. district court denied habeas relief due,
in part, to the testimony from the state trial judge who imposed
the death penalty.36
The Fifth Circuit held that, although the
lower court could properly consider the testimony of the trial

judge to the extent it contains personal knowledge of historical
facts or expert opinion, the portion of [the judges] testimony
in which he explained his reasons for imposing the death
sentence and his probable response to the evidence adduced at
the habeas hearing is inadmissible evidence that may not be
considered by the [lower] court.37
The Fifth Circuit based its holding on two cases.
One was
the Supreme Courts 1904 decision in Fayerweather v. Ritch,38

where the Court held:
[T]he testimony of the trial judge, given six years after
the case had been disposed of, in respect to matters he
considered and passed upon, was obviously incompetent.
True, the reasoning of the court for the rule [prohibiting
testimony by jurors] is not wholly applicable, for as the
case was tried before a single judge there were not two or
more minds coming by different processes to the same
result. Nevertheless no testimony should be received
except of open and tangible facts - matters which are
susceptible of evidence of both sides. A judgment is a
solemn record. Parties have a right to rely upon it. It
should not lightly be disturbed, and ought never to be
34
35
36
37
38
693 F.2d 1243, 1263 (5th Cir. 1982) (en banc), revd on other
grounds, 466 U.S. 668 (1984).
685 F.2d 1227, 1255 (11th Cir. 1982).
693 F.2d 1243.
Id. at 1263.
195 U.S. 276 (1904).
14
overthrown or limited by the oral testimony of a judge or

juror of what he had in mind at the time of the decision.39
In Fayerweather, the judge was being asked to provide testimony
about his thought process years after the trial.
But in the
present case, the military judge volunteered his explicit

statement that he based his sentence in part on collateral
consequences immediately following the trial.
Therefore, this
is not a situation where Appellant is trying to disturb his

trials outcome or have it overthrown or limited by asking the
military judge to disclose his thoughts when he determined
Appellants sentence that would otherwise never have been
disclosed.40
The other case that the Fifth Circuit cited to support its
holding in Washington is United States v. Crouch.41
In that
case, the Fifth Circuit stated that just as a court will not
review the motives of a legislature in enacting a law, a
judges statement of his mental processes is absolutely
unreviewable.42
Crouch cites the excerpt from Fayerweather
quoted above and United States v. Morgan,43 where the Supreme

Court stated it could not review the mental processes of the
Secretary of Agriculture in proceedings held to determine the
39
40
41
42
43
Id.
Id.
566
Id.
313
at 306-07 (emphasis added).

F.2d 1311 (5th Cir. 1978).
at 1316.
U.S. 409, 422 (1941).
15
reasonableness of rates charged by market agencies at

stockyards.
The facts of Morgan -- where the Supreme Court
declined to delve into the mental processes of the Secretary of

Agriculture in an attempt to determine if the rates he set were
reasonable -- are clearly factually distinguishable from the
situation in this case.
Fayerweather and Crouch are the same two cases that the
Eleventh Circuit cited in Proffitt.44
In reversing the district
courts denial of appellants habeas claim in part, the Eleventh

Circuit held that the lower court erred in relying on the trial
judges post-trial statements that he did not use an experts
report in determining the sentence.45
The court stated that
post-decision statements by a judge or juror about his mental

processes in reaching [a] decision may not be used as evidence
in a subsequent challenge to the decision.46
The situation in
Proffitt is similar to the other cases that are concerned with

protecting judges mental processes from being called into
question long after the end of the trial.
Their rationale does
not apply where, as in this case, immediately after trial the

military judge voluntarily disclosed the information he
considered in making a sentence determination.
44
45
46
685 F.2d at 1255.

Id.
Id.
16
Significantly, the Supreme Court has not explicitly held

that Fed. R. Evid. 606(b)47 applies to trial judges, and the rule
is cited by only one of the cases discussed above.
In
Washington, the Fifth Circuit cited Fed. R. Evid. 606(b) and

stated that its underlying policy considerations apply equally
to judges.48
The Fifth Circuit then provided an in-depth
discussion of the policy reasons why a judges deliberative

process should not be revealed.49
Most, if not all, of the
policy reasons are inapplicable to the situation in this case,

thus providing further support for our holding that the military
judges voluntary disclosure in this case should not be
protected by M.R.E. 606(b).
First, the Fifth Circuit stated that the testimony of the
trial judge poses special risks of inaccuracy because it is
often given several years after the fact and a judge is
unlikely to be able to reconstruct his thought processes
accurately over such a span of time.50
Second, the finality
and integrity of judgments would be threatened by a rule that

enables parties to attack a judgment by probing the mental
47
Fed. R. Evid. 606(b) is virtually identical to M.R.E. 606(b),

except that it does not include the exception for unlawful
command influence that is included in M.R.E. 606(b).
48
693 F.2d at 1263.
49
Id. Some of these policy reasons were addressed by the Air
Force Court of Military Review in United States v. Rice, 20 M.J.
764, 768 (A.F.C.M.R. 1985), affd, 25 M.J. 35, 37-38 (1987),
when it held that M.R.E. 606(b) applies to military judges.
50
Washington, 693 F.2d at 1263.
17
processes of a judge.51
Also, a probing of the mental
processes of a state judge would exacerbate certain problems

that are already inherent in the habeas corpus context, such as
the tendency of the habeas proceeding to detract from the
perception of the trial of a criminal case in state court as a
decisive and portentous event when a trial judge is called
into federal court several years later to recreate his thought
processes at the criminal trial.52
Finally, the friction
between the state and federal systems of justice can hardly be

alleviated by a rule that permits the parties to interrogate a
state judge in federal court regarding the basis for his
decision.53
The first and fourth reasons are clearly inapplicable to
the military judges disclosure in this case.
The first reason
does not apply because the military judge explicitly stated his
thought process in the Bridging the Gap session immediately
after trial; this is not a case where the judge is being asked
years afterwards to recall his thought processes.
The fourth
policy reason is inapplicable because the military justice

system is one system, rendering the friction between the federal
and state systems irrelevant.
51
52
53
Id.
Id. (internal quotations and citations omitted).
Id.
18
The second and third factors - which we will label the

finality factors - arguably support the conclusion that a
judges mental processes should be protected.
But the situation
in this case, where the military judge voluntarily disclosed

immediately after trial that he considered collateral
information in determining Appellants sentence, is completely
different from an appellants request years after a trial to
explore the deliberative process of the judge.54
Additionally,
in this case, neither the military judge nor the Government

disputes the existence of the statement concerning the military
judges basis for assessing Appellants sentence.
Thus, this
case is also distinguishable from cases where the military judge

disputes he ever made the statements the appellant later claims
demonstrate prejudice.55
In conclusion, the plain meaning of M.R.E. 606 limits its
application to court members.
When read in conjunction with
M.R.E. 605, it becomes even more apparent that military judges

are excluded from its scope.
Moreover, to read the case law as
protecting all statements made by a military judge - such as
54
See Fayerweather, 195 U.S. at 306-07. See also Morrison v.

Kimmelman, 650 F. Supp. 801, 805-07 (D.N.J. 1986) (holding that,
on remand, the State could not elicit evidence from the trial
judge, sitting as trier of fact, concerning how he weighed the
evidence and whether, absent a specific type of evidence, he
would have convicted the petitioner).
55
See United States v. Lentz, 54 M.J. 818, 820 (N-M. Ct. Crim.
App. 2001).
19
the one made here - would not only further misconstrue the
precedent relied upon in our decisions in Rice and Gonzalez, but
would also thwart the well-settled rules against considering
collateral information in assessing an accuseds sentence.
Therefore, we hold that the military judge erred in considering
the Armys policy of good-time credit when assessing
Appellants sentence.
Furthermore, we hold that the Army Court
of Criminal Appeals erred in relying on M.R.E. 606(b) to protect

the statements voluntarily disclosed by the military judge.
To
the extent that our decisions in Rice and Gonzalez conflict with
this decision, they are overruled.
When the military judges statements are considered, it is
apparent that he lengthened Appellants sentence by ten days for
an improper reason.
This error establishes prejudice under
Article 59(a), UCMJ.56
The Army Court of Criminal Appeals is
best positioned to determine the appropriate remedy for

Appellant being improperly confined for ten days.
DECISION
Accordingly, we affirm that portion of the lower courts
decision affirming the findings.
We set aside the portion of
the lower courts decision affirming the sentence and remand the
case to the Army Court of Criminal Appeals.
That court shall
perform a new Article 66(c), UCMJ, sentence appropriateness
56
10 U.S.C. 850(a)(2000).
20
review in light of Appellants improper confinement for ten days

and determine an appropriate remedy.
21

CRAWFORD, Judge (concurring in part and dissenting in
part):
[H]ard cases, it is said, make bad law.1
This frequently
quoted observation has served as a warning for over 300 years to

judges on courts of law who would modify or reject a rule of law
for the benefit of an individual cause, rather than reach a
result they deem equitably unattractive.
Despite this warning,
the majority rejects decades of military practice and precedent

to reach the result they deem equitable - a result that may
seem fair but may also qualify as the outcome Lord Argyll warned
against.
We profess to be a Nation that adheres to the rule of law.
Because I believe that to be true, I prefer to follow the rule
of law, even when it produces a hard result.
In this case, I
would apply our precedent, leaving unaltered the very nature of

trial by military judge alone, and affirm not only the sentence
in this case, but the principles this Court and all military
justice practitioners have followed since 1969.
For those
reasons, I must respectfully dissent from the result and from

the majoritys new rules restricting consideration by military
judges of collateral consequences during their deliberations on
sentencing.
Ex parte Long, 3 W.R. 18, 19 (1854).

As to the majoritys return to the plain language of
Military Rule of Evidence (M.R.E.) 606(b), however, I concur and
applaud the majoritys willingness to correct a prior instance
of judicial rulemaking by this Court.
FACTS AND FACT FINDING
If we were to disregard, for the moment, the Military Rules
of Evidence, the Rules for Courts-Martial (R.C.M.), and the
facts as found by the court below, the facts of this case
would be unappealing, from the Governments standpoint.
These
facts would establish that the military judge had discussed

his deliberative process in an informal setting, that he had
departed from established practice to apply a service policy not
formally introduced to the proceedings, and that he had
increased Appellants sentence based on that policy.
To the contrary, the record and the factual findings of the
court below establish only that Appellants trial defense
counsel timely complained to the convening authority that the
military judge had unfairly sentenced Appellant to an additional
ten days of confinement by considering what counsel described as
a well known practice of Army Regional Corrections Facilities.
The Army Court of Criminal Appeals also noted defense counsels
assertion that the military judge had made the post-trial
statement and that this assertion was unrebutted by the
Government.
To support Appellants claim, however, there is not

now, nor has there ever been, any competent evidence of the
military judges statement.
As the court below noted, its task
was to ultimately conclude [whether] the statement is competent

evidence that the military judge improperly considered
extraneous information.
United States v. McNutt, 59 M.J. 629,
632 (A. Ct. Crim. App. 2003).
It then implicitly assumed the
statement had been made for the purpose of concluding that,

there is no competent evidence of extraneous prejudicial
information that was improperly brought to the attention of the
sentencing authority.
Id. at 633.
It so concluded, in part,
because the policy in question is common knowledge to military

judges.
As noted below, it is also one frequently and
historically applied to the benefit of servicemembers who have

elected to be sentenced by military judge alone.
What the court below considered arguendo, this Court now
finds as fact:
that the statement was made and that there was
an improper consideration of collateral matters.

In United States v. Ginn,2 we recognized both the authority
and the limitations of Article 66 courts when they address
issues raised in post-trial affidavits without remand for a
DuBay3 hearing on disputed factual issues.
As we are not
empowered by statute to make factual findings, our authority is
2
3
47 M.J. 236 (C.A.A.F. 1997).

United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
3

certainly less and our limitations more stringent.
Nonetheless,
the majority decides that this Court can award relief on the
basis of an unrebutted, unsworn, post-trial factual assertion by
a defense counsel to a convening authority.
Moreover, without
reference to a DuBay hearing, or even a remand to the court

below, the majority finds that the defense counsels statement
must be true because the military judge did not rebut that
statement to the convening authority, notwithstanding the
precedent of this Court suggesting that such a rebuttal would
have been improper,4 and absent any evidence that the military
judge has ever been made aware of the statement.5
empowered by Congress to find such facts.
We are not
Consequently, even if
the majority now overrules both Rice and Gonzalez6 and concludes
that M.R.E. 606(b) does not apply to military judges, unless we,
like the court below, address this issue arguendo, we must
remand for a DuBay hearing.
LAW, PRECEDENT, AND PRACTICE
Trial, including sentencing, before military judge alone is
different than trial before members.
In United States v.
Hannan,7 this Court not only condoned, but encouraged military
United States v. Rice, 25 M.J. 35 (C.M.A. 1987)(applying M.R.E.

606(b) to military judges).
5
Authentication (R.C.M. 1104) precedes submission of matters by
the accused (R.C.M. 1105(c)(1)).
6
United States v. Gonzalez, 42 M.J. 373 (C.A.A.F. 1995).
7
17 M.J. 115 (C.M.A. 1984).
4

judges to know and apply good-time policies during their
sentencing deliberations.8
While not central to the holding of
that case, the Court clearly recognized not only the relevance
of such information to military judge sentencing proceedings,
but affirmed that such knowledge and application is and always
has been part of the military judges function when an accused
elects military judge alone as the sentencing authority:
Thus, in seeking to arrive at an appropriate sentence,
Judge Wold properly took into account the rules
governing parole eligibility. Indeed, military judges
can best perform their sentencing duties if they are
aware of the directives and policies concerning goodconduct time, parole, eligibility for parole,
retraining programs, and the like.9
Hannans failure to elaborate on the mechanism by which
military judges are properly to consider such information is not
surprising in light of the overlap created by M.R.E. 201A
(Judicial Notice of Law) and the principle long embraced by this
Court that military judges are presumed to know and properly
apply the law.10
If it becomes error for a military judge to
apply law (including appropriate regulations) not admitted in
See, e.g., Department of Defense (DOD) Instruction 1325.7,

Administration of Military Correctional Facilities and Clemency
and Parole Authority, December 17, 1999, Enclosure 26. It is
highly likely that this policy is what the military judge relied
on because it is a subject of instruction for all students at
the Military Judges Course of the U.S. Army Judge Advocate
Generals Legal Center and School.
9
17 M.J. at 123-24.
10
United States v. Lewis, 12 M.J. 205 (C.M.A. 1982).
5

evidence and not formally noticed to the parties,11 then what law
is it that military judges will be presumed to know and properly
apply?
Requiring military judges formally to notice judicially
all law they consider would hopelessly burden the trial bench
with identifying and announcing before each ruling or decision,
all the law the judge intends to consider.
On a related issue, when an accused elects to be sentenced
by military judge alone, the military judge, unlike court
members, is not only permitted to be aware of and consider
sentences received by similarly situated accuseds, but we have
repeatedly and recently expressed our expectation that he do so:
The experienced and professional military lawyers who
find themselves appointed as trial judges . . . have a
solid feel for the range of punishments typically
meted out in courts-martial. . . . We have every
confidence that this accumulated knowledge is an
explicit or implicit factor in virtually every case in
which a military judge imposes sentence. . . .12
That military judges may sometimes consider what court
members may not is simply not news.
As one commentator has
noted:
Awareness of the collateral consequences of a courtmartial sentence is yet another area where court
members lag far behind the military judge. In United
States v. Griffin, the COMA affirmed the general rule
that courts-martial [are] to concern themselves with
the appropriateness of a particular sentence for an
11
See M.R.E. 201.

United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999)
(quoting United States v. Ballard, 20 M.J. 282, 286 (C.M.A.
1985)).
12

accused and his offense, without regard to the
collateral administrative effects of the penalty under
consideration. This may deprive the accused of the
opportunity to present important evidence to the
members. For example, members may be permitted to
hear testimony about a rehabilitative program for sex
offenders at the United States Disciplinary Barracks,
but not be informed of the sentence length necessary
for the accused to be incarcerated there. Judges, on
the other hand, are cognizant of the administrative
consequences of their sentences and are permitted to
consider this knowledge in arriving at a proper
sentence.13
The majority cites Hannan, without quotation, explanation,
or discussion, as if to dismiss by faint notice Hannans
significance, not only for its holding, but also for its obvious
value as a historical record of the way military judge alone
cases have been tried since the Military Justice Act of 1968.
Further ignoring the distinction between sentencing by members
and sentencing by military judge alone, the majority quotes from
our prior opinions addressing restrictions on information that
court members are permitted to consider.
Finally, the majority
overrules those portions of Rice and Gonzales that are

inconsistent with its opinion, but leaves untouched our
13
Major J. Kevin Lovejoy, Abolition of Court Member Sentencing

in the Military, 142 Mil. L. Rev. 1, 48-49 (Fall 1993)(internal
citations omitted).
7

decisions in Hannan, Lacy, Ballard, and United States v.
Duncan,14 and many similar opinions.
Since 1969, our opinions have starkly depicted our
historically different approach to sentencing by members, as
opposed to sentencing by military judge alone, and that
difference has been relied on by defense counsel and their
clients for decades.
For example, defense counsel not
infrequently advise their clients to elect trial by military

judge alone when the case presents a legal defense or when
counsel wishes to argue law to the military judge on findings or
sentence.
This is particularly true when the facts alleged by
the Government are repugnant and the legal distinctions fine.15

In trials before military judge alone, military judges are not
restricted to consideration of only the law presented and argued
14
53 M.J. 494 (C.A.A.F. 2000). In Duncan, we unanimously

affirmed a military judges instruction, over defense objection,
based on exactly the same Department of Defense Instruction.
Id. at 498-99. Further, the military judge instructed the
members, apparently from his own knowledge, on the availability
of alcohol and sex offense rehabilitation programs for the
accused during his prospective incarceration. Id.
15
For example, the accused may elect to be tried before a
military judge alone when the facts and circumstances of the
case may inflame the passions of a lay jury but not of a
seasoned jurist. Joseph L. Falvey Jr., United Nations Justice
or Military Justice: Which is the Oxymoron? 19 Fordham Intl
L.J. 475, 506 (1995).
8

by counsel, any more than they are restricted in that sense
while ruling on a matter of law.16
As noted above, the defense frequently elects trial by
military judge alone when seeking a measure of predictability in
sentencing.
This predictability exists, in large measure,
because military judges are aware - some to the point of

maintaining meticulous tracking systems - not only of the
sentences imposed in similar cases as recorded in reported
appellate law, but of the sentences they have imposed in prior
cases under similar circumstances.17
Prohibiting military judges
from considering such matters during sentence deliberations, on

the grounds that such matters could not properly be considered
by members, would be an enormous departure from decades of
practice with potentially disastrous results, as noted below.
Just four years ago, we unanimously announced in Duncan
that a military judge may answer, in instructions, the questions
of court members regarding parole and treatment programs, and
may do so by draw[ing] upon a body of information that is
16
This is consistent with federal practice: [a]ll that the

procedural rules and the current trend provide is that the court
itself is free to consult its own sources and to attempt to
determine the appropriate law on the basis of all available
statutes, decisions and other sources. Stephen A. Saltzburg et
al., Federal Rules of Evidence Manual 129 (7th ed. 1998).
17
We have every confidence that this accumulated knowledge is
an explicit or implicit factor in virtually every case in which
a military judge imposes sentence . . . . Lacy, 50 M.J. at 288
(quoting Ballard, 20 M.J. at 286).

reasonably available and which rationally relates to the
sentencing considerations in RCM 1005(e)(5).18
The majority
announces today that a military judge, sitting alone, may not

draw on that very same body of information, concluding without
stating that such is now extraneous prejudicial information
improperly considered by the military judge.
In sum, the
majority now chastises Judge Swann for considering and applying

exactly the same policies that engendered our commendation of
Judge Wold twenty years ago.
It is this selective application,
and sub silentio rejection, of our precedent that may lead our
readers to question whether the majoritys position is one of
law or equity.
THROWING THE BABY OUT WITH THE BATH WATER?
In what is no longer a novel approach by this Court, the
desire for an equitable result in an individual case appears to
have produced new rules for the conduct of courts-martial.
Leaving room for exceptions to be applied as equity may require,
the majority opinion is likely to be read as recognizing two
well-settled general rules:
(1) military judges and court
members are bound by the same rules pertaining to consideration

of collateral consequences in sentencing; and (2) neither court
members nor military judges may consider collateral consequences
in deliberations on sentence:
18
Duncan, 53 M.J. at 500.

10

[T]he general preference for prohibiting consideration
of collateral consequences is applicable to the
military judges consideration of the Army good-time
credits. Each accused deserves individualized
consideration on punishment. Thus, proper punishment
should be determined on the basis of the nature and
seriousness of the offense and the character of the
offender, not on many variables not susceptible of
proof. In other words, sentence determinations
should be based on the facts before the military judge
and not on the possibility that Appellant may serve
less time than he was sentenced to based on the Armys
policy. Moreover, good-time credits are awarded as a
consequence of the convicted servicemembers future
behavior - behavior that may or may not take place.
Therefore, the possibility of good-time credit should
not be considered by the members or the military judge
when deciding what sentence is appropriate.
United States v. McNutt, 61 M.J. __, __ (9-10) (C.A.A.F. 2005)
(footnotes omitted).
There is hardly a word of the majoritys
reasoning in this case that would not compel application of

these general rules to all policies on parole, good time,
rehabilitative programs, length-of-confinement thresholds for
assignment to the various confinement facilities, and other
collateral consequences associated with confinement.
Although the confinement at issue in this case is ten days,
the flaw in the majoritys holding is most apparent when applied
to the other end of the confinement scale.
As the majority
said:
{T]his does not mean that he should consider [the
policy] in determining Appellants sentence. We hold
that the military judge erred in considering the
Armys good-time credit policy when he assessed
Appellants sentence.
11

Id. at __ (10).
The very same DOD Instruction that the majority
chastises the military judge for considering is also the

authority for good time, parole, and clemency permitted in
cases of life without parole, life, and terms of years.
In
fact, as every military judge and every experienced defense

counsel knows, service members sentenced to life earn no good
time, those sentenced to ten years or more earn ten days per
month, and so on.19
Even if applied only to good time, what
todays opinion tells practitioners involved in trials of

service members with the most to lose is that these things
cannot be considered by a military judge.
In other words,
sentence determinations should be based on the facts before the

military judge and not on the possibility that Appellant may
serve less time than he was sentenced to based on the Armys
policy.20
Id. at __ (9).
No longer will defense counsel be
permitted to argue that their client should receive a term of

years, rather than life, so that he or she can earn a future
through good time and gain the hope and the motivation to lead
a law-abiding life.
No longer will a military judge be able, as
Judge Wold did, to consider the collateral impact that a

sentence of a particular length may have.
19
DOD Instruction 1325.7, Encl. 26.

The majority describes the authority in question as an Army
policy, rather than a DOD Instruction, binding on all military
confinement facilities. McNutt, 61 M.J. at ___ (9).
20
12

As written, however, there seems no reason not to apply the
majoritys prohibitions to other, even more collateral
consequences:
the potential effect of sexual offender
registration laws; the potential loss of professional licensure

or certification; the potential loss of a security clearance, a
military training program, a promotion, or an assignment; and
the potential deportation of non-citizen servicemembers.21
Any
experienced practitioner would certainly question whether the

majority opinion now precludes from consideration by a
sentencing authority - including military judge alone - a vast
array of collateral consequences frequently cited by defense
counsel in arguments to the effect that an accused should be
punished less harshly because he is being punished by the
system.
That being the case, I must question why the majority did
not also overrule or modify Hannan, Becker, United States v.
Greaves,22 or United States v. Luster.23
21
Many may question
Oddly, the speculative, collateral consequence of loss of

retirement benefits is not discussed by the majority, but
certainly seems threatened unless saved by rule (3). See, e.g.,
United States v. Becker, 46 M.J. 141 (C.A.A.F. 1997).
22
46 M.J. 133 (C.A.A.F. 1997)(holding that military judge erred
by not answering questions of members regarding effect on
potential retirement benefits of BCD upon nineteen years, ten
months of service).
23
55 M.J. 67 (C.A.A.F. 2001)(holding that military judge erred,
in trial by members, by excluding evidence of potential lost
retirement benefits in a case of eighteen years and three months
of service).
13

whether the unspoken reason is the existence of a third general
rule in the majoritys decision: (3) if a collateral consequence
can be of benefit to the defense case, it may be considered,
even if it would otherwise violate rule (1) or (2).
It is in
this fashion that the baby of future Appellants will be

separated from the bath water; however, the baby of the
Government winds up in a storm sewer.
Since such a rule - if
a rule of law - could only be established by Congress or the

President, one must presume that this unspoken rule is no more
than the application of equity to avoid a hard result.
CONCLUSION
The question of whether the military judges knowledge
and consideration of these collateral consequences
constitutes extraneous prejudicial information or
extrajudicial knowledge was answered by this Court in
Hannan, 17 M.J. at 123-4:
Indeed, military judges can best perform their
sentencing duties if they are aware of the directives
and policies concerning good-conduct time, parole,
eligibility for parole, retraining programs, and the
like.
In 1986, the now-Chief Trial Judge of the Army observed:
In his testimony before the Advisory Committee,
Colonel James G. Garner, the Chief Trial Judge of the
Army, commented that it was his policy to send a judge
to visit the various confinement facilities and [to]
prepare a memorandum detailing what he had learned on
the visit. Each Army trial judge received a copy of
the memorandum. Expecting the trial judge to
14

disregard this knowledge in imposing sentence is
nonsensical.24
Before we send sentencing by military judge in the direction of
the Titanic, we should heed this logic and undertake a much more
thorough review of history, practice, and precedent.
24
Captain Denise K. Vowell, To Determine an Appropriate

Sentence: Sentencing in the Military Justice System, 114 Mil. L.
Rev. 87, 180 n. 489 (1986).
15

BAKER, Judge (concurring in part and dissenting in part):
As the majority has correctly stated, generally courtsmartial [are] to concern themselves with the appropriateness of
a particular sentence for an accused and his offense, without
regard to the collateral administrative effects of the penalty
under consideration.
United States v. Griffin, 25 M.J. 423
(C.M.A. 1988) (quoting United States v. Quesinberry, 12 C.M.A.

609, 612, 31 C.M.R. 195, 198 (1962)).
dependent on the sentencing forum.
This general rule is not
Such a rule promotes
consistency in sentencing for like offenses and is consistent

with the principle of individualized sentencing based on the
charged conduct and not based on expectations of future
behavior.
Accordingly, I concur in this section of the majority
opinion.
However, I respectfully dissent from the second section of
the majority opinion addressing the application of Military Rule
of Evidence (M.R.E.) 606(b) because it is unnecessary to resolve
this case.
M.R.E. 606(b) states:
Upon an inquiry into the validity of the findings or
sentence, a member may not testify as to any matter or
statement occurring during the course of the
deliberations of the members of the court-martial or,
to the effect of anything upon the member's or any
other member's mind or emotions as influencing the
member to assent to or dissent from the findings or
sentence or concerning the member's mental process in
connection therewith, except that a member may testify

on the question whether extraneous prejudicial
information was improperly brought to the attention of
the members of the court-martial, whether any outside
influence was improperly brought to bear upon any
member, or whether there was unlawful command
influence. Nor may the member's affidavit or evidence
of any statement by the member concerning a matter
about which the member would be precluded from
testifying be received for these purposes.
Because this is a case where the military judge voluntarily
disclosed his thought process to counsel, M.R.E. 606(b)s
concern with an inquiry into the confidential deliberations of
members, or of the military judge to the extent the rule were
read to apply to factfinders in general, is not implicated.
Therefore, we need not address the application of M.R.E. 606(b)
to military judges to resolve this case.
Just as we would not
need to consider the scope of the attorney-client privilege in a

case involving a voluntary attorney or client disclosure.
As a
threshold matter, we would only need to determine whether any

possible applicable privilege had been waived.
This case does
not require us to explore the possible scope and limitations of

M.R.E. 605 or 606.
Any judicial privilege that might have
applied was independently and voluntarily waived by the military

judge.

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UNITED STATES, Appellee

This opinion is subject to revision before final publication.

United States v. McNutt, No. 04-0295/AR

Chief Judge GIERKE delivered the opinion of the Court.

During that session, the military judge voluntarily

disclosed how he determined the length of Appellants sentence.

States Army Court of Criminal Appeals affirmed Appellants

United States v. McNutt, No. 04-0295/AR

(M.R.E.) 606(b) did not provide a basis for impeaching

Accordingly, the decision of Army Court of Criminal

Appeals is reversed as to sentence and the case is remanded to

January 8, 2001, Appellant left his unit without permission and

On February 20, 2001,

Appellant again absented himself without authority and returned

About a month later, he

surrendered to military authorities on March 19, 2001, at Fort

Appellant remained under military control,

awaiting disposition, until he absented himself without

He was absent until

Accordingly, we also granted review of this issue:

60 M.J. 122 (C.A.A.F. 2004)(order granting review).

United States v. McNutt, No. 04-0295/AR

he was apprehended at his house in Belton by the County Sheriff

Appellant was charged with one

specification of desertion terminated by apprehension, and two

In the letter, Cpt Shahan asserted that

during the Bridging the Gap session with counsel after

10 U.S.C. 885, 886 (2002).

United States v. McNutt, No. 04-0295/AR

served sixty days of confinement.7

Cpt Shahan asked the

convening authority to disapprov[e] 10 days of the adjudged

Specifically, the defense counsel averred:

After the guilty plea, the military judge informed the

asserted that, based on United States v. McLaren,8 it is improper

The military judges statements made during the Bridging the

United States v. McNutt, No. 04-0295/AR

Specifically, the lower court stated that if

the military judge improperly considered extraneous

The Army Court opined that because the Army

regulation regarding good-time credit was not mentioned at

M.R.E. 606(b) prohibits a court member from testifying as to

United States v. McNutt, No. 04-0295/AR

The military judge erred in considering the Armys good-time

policy in assessing Appellants sentence

military judges are asked by members about possible collateral

The reason for the preference is that the

purported effect of a collateral [consequence] cannot be used to

ignore it would mean that [military judges] would be required

United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988)

United States v. McNutt, No. 04-0295/AR

to court members. . . . [T]he waters of the military sentencing

therefore, it may be appropriate for the military judge to

In deciding whether the

military judge erred in giving such instructions, we will take a

example, the availability of parole and rehabilitation programs

United States v. McNutt, No. 04-0295/AR

are issues of general knowledge and concern, and as such they

However, in such a situation, the military judge