              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                            No. ACM 38005 (rem)
                          ________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                      v.
                            Joshua A. KATSO
                    Airman Basic (E-1), USAF, Appellant
                          ________________________

          Appeal from the United States Air Force Trial Judiciary
                             On Remand from
          the United States Court of Appeals for the Armed Forces
                           Decided 2 February 2017
                          ________________________

Military Judge: Matthew D. van Dalen.
Approved sentence: Dishonorable discharge, confinement for 10 years, and
total forfeiture of pay and allowances. Sentence adjudged 6 May 2011 by
GCM convened at Grand Forks Air Force Base, North Dakota.
For Appellant: Major Isaac C. Kennen, USAF.
For Appellee: Lieutenant Colonel Jennifer A. Porter, USAF; Major Jeremy D.
Gehman, USAF; and Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and SANTORO, Appellate Military Judges.
Judge SANTORO delivered the opinion of the court, in which Senior Judge
MAYBERRY joined. Chief Judge DREW delivered a separate dubitante opin-
ion.
                          ________________________

               PUBLISHED OPINION OF THE COURT
                          ________________________

SANTORO, Judge:
    A general court-martial composed of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification of aggravated sex-
                 United States v. Katso, No. ACM 38005 (rem)


ual assault, one specification of burglary, and one specification of unlawful
entry in violation of Articles 120, 129, and 134, UCMJ, 10 U.S.C. §§ 920, 929,
934. The adjudged and approved sentence was a dishonorable discharge, con-
finement for 10 years, and forfeiture of all pay and allowances.
    Upon initial review, Appellant raised two issues for our consideration: (1)
whether his right to confrontation was denied when the military judge over-
ruled a defense objection to the testimony of the Government’s DNA expert,
and (2) whether the conviction for unlawful entry should be dismissed be-
cause the specification failed to allege that his conduct was prejudicial to
good order and discipline or service discrediting. We found that the expert
improperly repeated testimonial hearsay. We set aside and dismissed the
findings of guilt with respect to the specifications alleging aggravated sexual
assault and burglary, and authorized a rehearing. We also set aside and dis-
missed the unlawful entry specification because it failed to state an offense.
United States v. Katso, 73 M.J. 630 (A.F. Ct. Crim. App. 2014) (Katso I).
    The Judge Advocate General (TJAG) of the Air Force certified the expert
witness issue to our superior court, which reversed our decision and remand-
ed to us for further review. United States v. Katso, 74 M.J. 273 (C.A.A.F.
2015) (Katso II). TJAG did not certify, nor did our superior court address, our
setting aside and dismissing the unlawful entry specification.
    On remand, Appellant raises five assignments of error: (1) the military
judge erred by allowing an expert to testify about DNA tests the expert had
not personally conducted, (2) the unlawful entry specification failed to state
an offense and should be dismissed, (3) the burglary and unlawful entry spec-
ifications are facially duplicative, (4) he is entitled to relief for procedural er-
rors relating to his confinement pending appeal, and (5) the military judge’s
instruction on proof beyond a reasonable doubt was erroneous.

                                I. BACKGROUND
   While celebrating her 21st birthday with several friends, Senior Airman
(SrA) CA became intoxicated after consuming between 15 and 20 drinks over
the course of the evening. At an off-base bar and unable to return to the base
on her own, she was assisted back to her room and fell asleep on her bed. SrA
CA testified that she woke up when she felt “someone having sex with [her].”
She said she was attacked by a man wearing denim pants, glasses, a beanie
cap, and a coat. After SrA CA struggled against him, her assailant left, and
SrA CA ran into another room and told a friend she had been raped. SrA CA
subsequently identified Appellant as her attacker.




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                 United States v. Katso, No. ACM 38005 (rem)


                                II. DISCUSSION
A. Admissibility of Expert Testimony
   Appellant raises no new argument nor does he identify any way in which
our superior court’s decision did not fully address this assignment of error.
Our superior court’s decision in Katso II resolved this issue adversely to him
and he is entitled to no relief. Katso, 74 M.J. at 284.
B. Failure to State an Offense
   Our prior decision resolved this assignment of error in Appellant’s favor
and our superior court did not address or overturn our decision on this point.
We decline the Government’s invitation to revisit Katso I’s analysis, and we
adhere to the decision setting aside and dismissing this specification. 1
C. Sentence Reassessment
    Having set aside and dismissed the guilty finding on the unlawful entry
charge and specification, we must either reassess Appellant’s sentence or re-
mand for a rehearing on sentence. Applying the analysis set forth in United
States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Buber, 62
M.J. 476 (C.A.A.F. 2006); United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006);
and United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and carefully consider-
ing the entire record and the totality of the circumstances, we are confident
that we can reassess the sentence. There has not been a change in the penal-
ty landscape as the military judge merged this offense with the burglary of-
fense for sentencing. All of the evidence admitted in sentencing remained rel-
evant and admissible. Appellant also does not contest the appropriateness of
his sentence. We therefore reassess the sentence to that which was adjudged
at trial: a dishonorable discharge, confinement for 10 years, and total forfei-
ture of pay and allowances.
    In reassessing Appellant’s sentence, we necessarily have also concluded
that the reassessed sentence is appropriate. We assess sentence appropriate-
ness by considering Appellant, the nature and seriousness of the offense, Ap-
pellant’s record of service, and all matters contained in the record of trial.
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v.
Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F.
2007). The sentence as reassessed is appropriate for this Airman who invaded
a fellow Airman’s dormitory room and violently sexually assaulted her on an
Air Force installation.


1 Our setting aside and dismissing this charge and specification moots Appellant’s
third assignment of error.




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                  United States v. Katso, No. ACM 38005 (rem)


D. Confinement Pending Appeal
   We rendered our initial decision setting aside the findings on 11 April
2014. On 9 June 2014, TJAG filed a certificate of review with our superior
court. On 3 June 2015, Appellant requested review of his continued confine-
ment. On 15 June 2015, while this case was still with our superior court, a
properly-appointed reviewing officer determined that Appellant should re-
main in confinement pending the resolution of his appeal. On 30 June 2015,
our superior court reversed our decision, effectively reinstating Appellant’s
convictions for aggravated sexual assault and burglary.
    In Moore v. Akins, 30 M.J. 249 (C.M.A. 1990), our superior court faced the
exact issue presented in this case: if a service court reverses the conviction of
a servicemember in confinement, and the case is certified pursuant to Article
67(b)(2), UCMJ, 10 U.S.C. § 867(b)(2), under what circumstances, if any, is
the servicemember entitled to be released from confinement? Noting Con-
gress’s desire that “a practical means be made available to release accused
servicemembers from confinement pending appeal in meritorious cases,” our
superior court granted Moore’s habeas corpus petition and ordered his release
pending completion of appellate review. Moore, 30 M.J. at 253. The court held
that a servicemember “must be released from confinement, unless and until
the Government shows reasons, such as risk of flight, or obstruction of jus-
tice, that warrant keeping him in confinement.” Id. at 249. 2
   Later, in United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), the Court of
Appeals for the Armed Forces (CAAF) reaffirmed Moore:
         After considering the matter, if the Judge Advocate General
         decides to certify a case to this Court, an accused’s interest in
         the favorable decision of the court below (even if inchoate) re-
         quires either that the accused be released in accordance with
         that decision or a hearing on continued confinement be con-
         ducted under [Rule for Courts-Martial (R.C.M.)] 305.




2   In response, Congress enacted Article 57a(c), UCMJ, 10 U.S.C. § 857a(c), which
provides that when a sentence to confinement has been ordered executed by the con-
vening authority but the case is pending review under Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2), “the Secretary concerned may defer further service of sentence to
confinement while that review is pending.” The grant of this discretionary authority
to the Secretary did not abrogate or alter our superior court’s holding in Moore.




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                   United States v. Katso, No. ACM 38005 (rem)


Miller, 47 M.J. at 362. The Miller rule has never been overturned and it has
been cited with approval by the CAAF in United States v. Kreutzer, 70 M.J.
444 (C.A.A.F. 2012). 3
    In its attempt to distinguish the instant case from Miller, the Government
argues: (1) Miller does not apply because Appellant never became a pretrial
detainee; (2) Appellant suffered no prejudice because when a hearing was ul-
timately held, the reviewing officer ordered his continued confinement; (3)
the fact that his convictions were eventually reinstated excuses the failure to
comply with Miller; (4) we should infer from our superior court’s disposition
without opinion of a similar issue raised in another case that Appellant is en-
titled to no relief; (5) we should infer from our superior court’s failure to ad-
dress this claim (which was brought to them only a few days before they is-
sued Katso II) that Appellant is entitled to no relief; and (6) Appellant suf-
fered no prejudice because he will now be released sooner than if he had been
released during the pendency of the appeal.
      1. Miller’s Applicability
    The Government’s initial response is that Miller does not apply to Appel-
lant. Citing Kreutzer, they argue that Appellant remained a “lawfully con-
fined post-trial prisoner” with an approved sentence to confinement through-
out the duration of our superior court’s review and that, therefore, Miller is
inapposite. We disagree.
    Kreutzer was convicted of premeditated murder and sentenced to death.
The Army Court of Criminal Appeals set aside the sentence to death but af-
firmed guilty findings with respect to several charges and specifications, in-
cluding murder while engaged in an inherently dangerous act. Facing nearly
the same claim as Appellant makes in the instant case, our superior court in
Kreutzer held that Miller’s requirement did not apply because Kreutzer re-
mained an adjudged prisoner throughout the duration of his appeal. Id.
   Miller was convicted of pandering, obstruction of justice, showing pornog-
raphy to minors, battery, attempted indecent assault, and providing alcohol
to minors. The adjudged sentence included confinement for 10 years. On ap-


3
    When Miller was decided, The Judge Advocates General had a 30-day period to de-
cide whether to certify a case to our superior court. United States v. Miller, 47 M.J.
352, 361 (C.A.A.F. 1997). Although the 30-day certification decision period has since
been expanded to 60 days, we agree with our Navy-Marine Corps colleagues that the
Miller requirement, i.e., confinement review upon certification, remains in effect.
Clark v. United States, 74 M.J. 826, 829 fn.2 (N-M. Ct. Crim. App. 2015) (unpub. op.).




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                 United States v. Katso, No. ACM 38005 (rem)


peal to this court, we set aside several findings of guilt and affirmed others,
but reassessed the sentence to reduce the confinement to four years. Based on
the reassessed sentence, officials at the United States Disciplinary Barracks
set Miller’s minimum release date for the following day—before TJAG decid-
ed whether to certify the case for review. Miller, 47 M.J. 352.
    Kreutzer and Miller are not inconsistent. In Kreutzer, several guilty find-
ings had been affirmed and the appellant was pending a rehearing on sen-
tence4 (as well as a rehearing on the set-aside findings). In Miller, the reas-
sessed sentence meant that Miller had served his entire sentence and was
entitled to immediate release from confinement. Therefore, Miller’s interest
in the favorable service-court decision was clear: if affirmed, he faced no fur-
ther liability for his offenses.
   In the instant case, where our initial decision nullified Appellant’s crimi-
nal liability, his case is more closely aligned with Miller (and Moore) in that
our decision, if affirmed, would require his immediate release from confine-
ment unless there was a proper determination to hold him for a rehearing.
We therefore hold that the Government was obligated to comply with Miller.
    2. Miller’s Requirements and Remedies
   Miller did not, however, specifically identify which of R.C.M. 305’s proce-
dures were to be followed. Nor did the CAAF identify the remedy, if any, for
non-compliance.
    R.C.M. 305 (entitled “Pretrial confinement”) establishes both procedural
requirements and remedies for non-compliance. Procedurally, the rule re-
quires that within 72 hours of a commander’s ordering a prisoner into “pre-
trial confinement,” the commander must determine whether confinement
should continue. R.C.M. 305(h)(2)(A). Within 48 hours of entry into confine-
ment, a neutral and detached officer must review the adequacy of the proba-
ble cause to continue pretrial confinement. R.C.M. 305(i)(1). Within 7 days of
the imposition of confinement, a neutral and detached officer must review
both the probable cause determination and the necessity for continued con-
finement. R.C.M. 305(i)(2). The remedy for failure to comply with these pro-
cedural rules “shall be an administrative credit against the sentence ad-
judged for any confinement served as the result of such noncompliance. Such
credit shall be computed at the rate of 1 day credit for each day of confine-
ment served as a result of such noncompliance.” R.C.M. 305(k).



4 Our superior court referred to Kreutzer’s status as having a “temporarily inchoate
sentence” which was ultimately adjudged to include confinement for life.




                                         6
                    United States v. Katso, No. ACM 38005 (rem)


    One could argue that the CAAF’s intent in Miller was simply to require
that a neutral and detached officer hold a hearing to determine whether con-
tinued confinement was appropriate and, because no Rule for Courts-Martial
set forth such a procedure, the reference to R.C.M. 305 was nothing more
than a suggestion about how such a hearing might be conducted. Conversely,
one could also argue that Miller requires the Government to comply with all
of R.C.M. 305’s procedural protections and that failure to do so will trigger
R.C.M. 305(k)’s one-for-one credit requirement.
    We must first therefore resolve the question of what process Miller re-
quires before we can determine whether Appellant received the process due
and, if not, the scope of any remedy. This appears to be a case of first impres-
sion.
    We easily conclude that Miller did not contemplate that R.C.M. 305 would
be followed in its entirety. First, Miller said that the detainee would be enti-
tled to “a hearing” conducted under R.C.M. 305 (emphasis added). Had our
superior court intended that Appellant receive a 72-hour review, a 48-hour
review, and a 7-day review, we doubt they would have referred to a singular
hearing, especially since R.C.M. 305 does not refer to a “hearing.” See R.C.M.
305.
    Second, two of the three findings a reviewing officer must make to justify
continued confinement under R.C.M. 305 are that an offense triable by court-
martial was committed and that the prisoner committed it. R.C.M. 305
(h)(2)(B). In Katso I, although we set aside the findings, we authorized a re-
hearing. We necessarily implicitly determined that notwithstanding our deci-
sion, probable cause existed to believe Appellant committed an offense triable
by court-martial. 5 We doubt that our superior court intended to give a review-
ing officer the authority to overturn that decision.
    We therefore conclude that the review Miller requires is one to determine
“continued confinement”—that is, whether confinement on appeal is neces-
sary because it is foreseeable that the prisoner will not appear at trial (or
pretrial hearings) or that the prisoner will engage in serious criminal mis-
conduct and, if either of those two conditions is met, that less severe forms of
restraint are inadequate. See R.C.M. 305(h)(2)(B). This is also consistent with
Moore’s holding that a detainee in such a situation must be released unless
the Government establishes “reasons . . . that warrant keeping him in con-
finement,” Moore, 30 M.J. at 249, without making reference to the need to



5   See Rule for Courts-Martial (R.C.M.) 601(d)(1).




                                            7
                        United States v. Katso, No. ACM 38005 (rem)


establish probable cause that the detainee committed an offense triable by
court-martial.
     Next we must determine when the Miller review is to occur. The CAAF
established the initial trigger: the date on which TJAG certifies a service
court decision is the date on which an appellant obtains an interest in the fa-
vorable lower-court decision requiring either release or a hearing. Miller, 47
M.J. at 362. We also know that the President determined 7 days from imposi-
tion of confinement is the outer limit by which confinement review must oc-
cur. We are, therefore, left with two possible windows: within 48 hours of cer-
tification 6 or 7 days of certification. 7 We believe that in the context of a Miller
review, 7 days is the appropriate window during which the hearing must be
held.
   The Government does not dispute that Appellant’s Miller review was not
conducted until 15 June 2015, 372 days after TJAG certified this case to our
superior court. Appellant requests that we grant 365 days of credit for illegal
confinement or alternatively use our Article 66(c), UCMJ, authority to reduce
the period of confinement by the same period. 8
    As noted above, Miller does not explicitly set forth the remedy for non-
compliance. We reject any argument that there can be no remedy for a Miller
violation, for “[i]t is a settled and invariable principle, that every right, when
withheld, must have a remedy, and every injury its proper redress.” Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 153 (1803).
   Because Miller could not have intended for each aspect of R.C.M. 305 to
control the continued confinement review, we are also not convinced that
R.C.M. 305(k) must be the source of the remedy. We do believe, however, that
the President’s determination that confinement without following established
procedural protections merits day-for-day administrative credit applies


6 See Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that the Fourth Amendment re-
quires a judicial determination of probable cause as a prerequisite to extended re-
straint of liberty following arrest); see also Cnty. of Riverside v McLaughlin, 500 U.S.
44 (1991) (vacating court of appeals’ judgment and concluding county was entitled to
combine probable cause determinations with arraignments if conducted within 48
hour of an individual’s arrest).
7   R.C.M. 305(i)(2).
8 Although not explicitly stated, Appellant’s request for 365 days of credit suggests
that he, too, does not believe that all of R.C.M. 305’s procedural requirements apply
to Miller reviews and that non-compliance began after 7 days without a Miller re-
view.




                                            8
                    United States v. Katso, No. ACM 38005 (rem)


equally to Miller violations as it does to pre-trial confinement review viola-
tions. 9
    Therefore, we hold that the remedy for the Government’s failure to pro-
vide a Miller review within seven days of certification is day-for-day adminis-
trative credit (beginning on the eighth day) against the sentence as finally
affirmed, and if the affirmed sentence does not include confinement sufficient
to offset all the credit to which the appellant is entitled, the credit shall be
applied against hard labor without confinement, restriction, fine, and forfei-
ture of pay, in that order, using the conversion formula under R.C.M.
1003(b)(6) and (7). The credit shall not be applied against any other form of
punishment. 10
    While we understand the Chief Judge’s dubitante opinion and belief that
R.C.M. 305 does not apply to this case, as an inferior court we are not at lib-
erty to craft a rule contrary to that clearly articulated by our superior court.
Were we writing on a blank slate we may well have reached a different re-
sult. But we are not. We are bound to follow and apply precedent as we un-
derstand it. We cannot ignore or fail to implement our superior court’s decla-
ration that R.C.M. 305 does apply to Appellant, at least in some respect. Our
decision today attempts to reconcile Miller, the interests the Miller rule ap-
pears designed to protect, and the Rules for Courts-Martial.
   The Government’s remaining arguments merit little discussion. There is
no requirement that a detainee complain about the propriety of confinement,
exhaust administrative remedies, or establish prejudice before R.C.M. 305(k)
credit is due and we do not believe a different rule was intended to apply to
Miller reviews. While not stated explicitly in the Rule, the reason Appellant
need not raise those issues is likely because the President, in promulgating
the Rules, recognized that incarceration without due process is inherently
prejudicial. 11


9 The Chief Judge’s dubitante opinion suggests that the remedy for a Miller review
violation should be based on equity rather than the day-for-day credit set forth in
R.C.M. 305(k). As neither he nor the CAAF have set forth the criteria we could or
should use in such a situation, we believe we are bound to follow the policy determi-
nation contained within the Rules for Courts-Martial for the remedy for the failure to
receive a confinement review hearing. R.C.M. 305(k).
10   See R.C.M. 305(k).
11We summarily reject the Government’s remaining three arguments. That Appel-
lant will ultimately be released sooner than had he been released pending appeal
does not change the fact that his right to Miller’s procedural protections does not de-
pend upon the outcome of the appeal. Our superior court’s denial (without opinion) of
(Footnote continues on next page)


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                  United States v. Katso, No. ACM 38005 (rem)


   We therefore grant Appellant the relief to which he is entitled: he shall be
credited with 365 days of administrative credit against the reassessed sen-
tence to confinement.
E. Findings Instruction
    Appellant asserts for the first time on remand that the military judge’s
instruction on the burden of proof beyond a reasonable doubt was error. 12 The
military judge instructed the members that if, based on their consideration of
the evidence, they were firmly convinced of Appellant’s guilt, that they must
find him guilty. Appellant did not object to the instruction at trial but now
argues that it violates Supreme Court precedent prohibiting a trial judge
from “directing the jury to come forward with [a guilty verdict], regardless of
how overwhelmingly the evidence may point in that direction.” United States
v. Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977) (citation omitted).
However, the CAAF recently rejected this argument under these circum-
stances. See United States v. McClour, No. 16-0455 (C.A.A.F. 24 January
2017). Accordingly, the military judge did not commit plain error in his rea-
sonable doubt instruction.

                                 III. CONCLUSION
    The findings of guilt as to Charges I and II and their specifications are
AFFIRMED. The findings of guilt as to Charge III and its specification are
set aside and the charge and specification are DISMISSED WITH PREJU-
DICE. The sentence, as reassessed, is AFFIRMED. Appellant shall be cred-
ited with 365 days of administrative credit against his sentence to confine-
ment.




a writ of habeas corpus in an unrelated case is irrelevant to the outcome of this case.
See Fetrow v. Cotton, 75 M.J. 405 (C.A.A.F. 2016). Similarly, we do not accept the
Government’s invitation not to grant Appellant the relief to which he is entitled be-
cause our superior court remanded the case without addressing the confinement is-
sue.
12The Government does not challenge our consideration of this issue despite its not
being raised during the initial submission of errors.




                                          10
DREW, Chief Judge (dubitante):
    I fully concur and join with the majority’s resolution of the expert testi-
mony, failure to state an offense, sentence reassessment, and findings in-
struction issues. However, while I applaud the majority’s attempt to reconcile
the rule announced by the Court of Appeals for the Armed Forces (CAAF) in
United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) and derived from Moore
v. Akins, 30 M.J. 249 (C.M.A. 1990), with Rule for Courts-Martial (R.C.M.)
305, which Miller seeks to implement, I am doubtful that R.C.M. 305 has any
application to the facts in this case.
    The Constitution vests Congress with the power to “make Rules for the
Government and Regulation of the land and naval Forces.” U.S. CONST. art. I,
§ 8, cl. 14. Congress delegated to the President, as Commander in Chief of the
Armed Forces, the authority to prescribe the Rules for Courts-Martial in Ar-
ticle 36, UCMJ. The President has exercised his delegated authority in
R.C.M. 305, in which he authorized pretrial confinement, established the
proper procedures to follow to order and review such confinement, and de-
tailed the remedy for noncompliance with those procedures.
    R.C.M. 305, by its very terms, applies to pretrial confinement. That is not
to say that such confinement can never arise as a result of the post-trial re-
view process. A confined appellant, having received a favorable final appel-
late decision that set aside his sentence to confinement (alone or along with
setting aside one or more findings) and authorized a rehearing, could most
certainly fall within the ambit of R.C.M. 305. If the convening authority de-
sires to keep an appellant in confinement until a new trial, the appellant
would become a pretrial confinee and the requirements of R.C.M. 305 would
apply. However, before an appellate decision has become final, the confinee
remains an adjudged and sentenced prisoner and not a pretrial confinee. See
United States v. Kreutzer, 70 M.J. 444, 451 (C.A.A.F. 2012) (Erdmann, J., dis-
senting). R.C.M. 305 simply does not apply while an appellate decision set-
ting aside a sentence to confinement remains inchoate.
    As the majority notes above, Congress, in response to Moore, enacted Ar-
ticle 57a(c):
       In any case in which a court-martial sentences a person to con-
       finement and the sentence to confinement has been ordered ex-
       ecuted, but in which review of the case under section 867(a)(2)
       of this title (article 67(a)(2)) is pending, the Secretary con-
       cerned may defer further service of sentence to confinement
       while that review is pending.
Article 57a(c), UCMJ (emphasis added).
                    United States v. Katso, No. ACM 38005 (rem)


   Even though Congress gave the Executive Branch in Article 57a(c) the
authority to defer further military confinement pending appeal—something
the Government had argued in Moore that the UCMJ did not previously pro-
vide—Congress declined to establish a requirement that the Government
must defer further confinement or must conduct a review to justify further
confinement. In particular, Congress chose not to amend the UCMJ to adopt
a procedure similar to 18 U.S.C. § 3143, 1 which was cited favorably in Moore.
See Moore, 30 M.J. at 251. The President, for his part, has not, before, be-
tween, or since the Miller and Moore decisions, exercised his statutory au-
thority to promulgate an R.C.M. or other rule requiring a review of continued
confinement during appeal.
    In neither Moore nor Miller did the CAAF base its holdings on constitu-
tional grounds. Rather, in Moore, it premised its decision on Article 57(d)
(now Article 57a(a)), which applies only to unexecuted sentences. As Appel-
lant’s sentence in this case was ordered executed long before we issued our
earlier inchoate decision setting aside his findings, Article 57a(a) provides no
basis for his requested relief. In Miller, the CAAF premised its decision on
Article 66(e), 10 U.S.C. § 866(e), which does not require the Government to
implement a Court of Criminal Appeals (CCA) decision which is pending fur-
ther review by the CAAF. On the contrary, the CAAF recognized that Article
66(e) specifically excludes it:
          The Judge Advocate General shall, unless there is to be further
          action by the President, the Secretary concerned, the Court of
          Appeals for the Armed Forces, or the Supreme Court, instruct
          the convening authority to take action in accordance with the
          decision of the Court of Criminal Appeals.
Miller, 47 M.J. 361 (quoting 10 U.S.C. § 866(e)) (emphasis added). In Miller,
the CAAF recognized Article 66(e) in holding:
          If the Judge Advocate General immediately decides not to pur-
          sue a case any further, there must be immediate notice to the
          convening authority of the opinion of the Court of Criminal Ap-
          peals and immediate direction to release an accused or conduct
          a hearing under RCM 305, Manual, supra, on pretrial confine-
          ment.
47 M.J. at 361.




1   The requirement to conduct the review is found in 18 U.S.C. § 3141.




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                  United States v. Katso, No. ACM 38005 (rem)


   Again acknowledging Article 66(e), the CAAF next held:
       If there is not such an immediate decision, there will be a 30-
       day period during which the Judge Advocate General is consid-
       ering whether to accept the lower court’s opinion or to pursue it
       further by way of a motion for reconsideration or certification
       to this Court. During such period, an accused remains in con-
       finement because the opinion below is inchoate.
47 M.J. at 361. However, without citing Article 66(e) or any other Article, the
CAAF finally articulated the rule in question in this case:
       After considering the matter, if the Judge Advocate General
       decides to certify a case to [the CAAF], an accused’s interest in
       the favorable decision of the court below (even if inchoate) re-
       quires that the accused be released in accordance with that de-
       cision or a hearing on continued confinement be conducted un-
       der RCM 305.
47 M.J. at 362.
     Miller does not explain how an appellant’s interest in a favorable inchoate
decision is any greater (or “sufficiently weighty” as stated in Kreutzer, 70 M.J.
at 446) once The Judge Advocate General (TJAG) has certified a CCA deci-
sion to the CAAF. An inchoate decision remains inchoate until it is final,
withdrawn, or set aside. A decision by TJAG to certify a CCA decision to the
CAAF does not make the CCA decision any less inchoate. Indeed, the exercise
of TJAG’s statutory authority extends the incomplete nature of the CCA deci-
sion rather than ripening it to any degree. It is beyond dispute that an appel-
lant has a profound interest in a favorable CCA decision, but that interest is
no more or less weighty once TJAG has certified it to the CAAF. Contrast this
to an affirmative decision of TJAG not to certify a CCA decision, or to the ex-
piration of the time to seek reconsideration from the CCA and certification to
the CAAF. In those circumstances, Article 66(e) would make the CCA deci-
sion final and no longer inchoate and require the Government to implement
it, to include complying with R.C.M. 305 if it desires to place an appellant in
pretrial confinement pending a rehearing.
    Application of the Miller rule in this case results in an inappropriate
windfall for Appellant. Unlike the confinees in Moore and Miller, Appellant
waited nearly a year from TJAG’s 9 June 2014 certification to raise the issue
of his continued confinement. He did so on 3 June 2015. Three days later, the
convening authority directed a hearing to consider the matter and that hear-
ing was held on 15 June, during which the hearing officer determined that
Appellant should remain in confinement. On 30 June, the CAAF reversed our
prior decision, reinstating Appellant’s convictions for sexual assault and bur-


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                United States v. Katso, No. ACM 38005 (rem)


glary. The record does not reflect why the Government did not, on its own ini-
tiative, hold a Miller hearing shortly after TJAG’s certification. However, un-
like the confinee in Kreutzer, who remained on death row after the CCA set
aside his death sentence until the CAAF issued a writ of mandamus, the con-
ditions of Appellant’s confinement since his trial have at all times been prop-
er for adjudged and sentenced prisoner with the type of sentence that our de-
cision today finds appropriate. We have found no prejudice Appellant has suf-
fered for the procedural timing failure to follow the Miller rule. Miller re-
quired a review of Appellant’s continued confinement. That review deter-
mined that continued confinement was appropriate. Because that review was
held shortly after Appellant requested it but a year after TJAG certified his
case, the majority opinion provides an R.C.M. 305(k)-like automatic day-for-
day administrative credit, granting Appellant 365 days administrative credit.
I doubt that R.C.M. 305 or Article 66(e) demands such a result.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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