United States v. Leese

This opinion is subject to revision before publication. UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________ UNITED STATES Appellee v. Nathan G. LEESE, Private First Class United States Army, Appellant No. 25-0024 Crim. App. No. 20230250 Argued April 8, 2025—Decided June 4, 2025 Military Judge: J. Harper Cook For Appellant: Lieutenant Colonel Ryan S. Coward (argued); Colonel Philip Staten, Lieutenant Colonel Autumn Porter, and Major Robert Luyties (on brief). For Appellee: Captain Nicholas A. Schaffer (argued); Colonel Richard E. Gorini, Major Lisa Limb, and Captain Anthony J. Scarpati (on brief); Major Justin L. Talley. Chief Judge OHLSON delivered the opinion of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined. _______________  United States v. Leese, No. 25-0024/AR Opinion of the Court Chief Judge OHLSON delivered the opinion of the Court. I. HOLDING We hold as follows: Confinement credit mandated by United States v. Pierce 1 applies only to a segmented sen- tence that corresponds to an offense that previously served as the basis for nonjudicial punishment; Pierce credit does not apply to an aggregate term of confinement. II. OVERVIEW Since its inception in the 1950s, Article 15 of the Uni- form Code of Military Justice (UCMJ), has included some form of the following provision: The imposition and enforcement of disciplinary punishment under this article for any act or omis- sion is not a bar to trial by court-martial for a se- rious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary pun- ishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punish- ment to be adjudged in the event of a finding of guilty. 10 U.S.C. § 815(f) (2018). In United States v. Pierce, our predecessor court reached two key conclusions upon interpreting this pas- sage. First, the Pierce court noted that “[i]t is clear from the language of this provision that Congress did not intend for imposition of nonjudicial punishment to preclude the sub- sequent court-martial of a servicemember accused of a se- rious offense.” 27 M.J. at 368. And second, the Pierce court opined that “[i]t does not follow that a servicemember can be twice punished for the same offense.” Id. at 369. In re- gard to the latter point, Judge Cox invoked the memorable phrase that “in these rare cases, an accused must be given 1 27 M.J. 367 (C.M.A. 1989). 2  United States v. Leese, No. 25-0024/AR Opinion of the Court complete credit for any and all nonjudicial punishment suf- fered: day-for-day, dollar-for-dollar, stripe-for-stripe.” Id. Although the calculation of what has become known as “Pierce credit” has always been somewhat intricate, 2 the application of that credit used to be quite simple. “When Congress first enacted the UCMJ, courts-martial adjudged only one sentence even if they found the accused guilty of multiple offenses.” United States v. Flores, 84 M.J. 277, 280 (C.A.A.F. 2024). Under this “unitary sentencing” approach, a military judge would simply “subtract” the amount of Pierce credit from the total adjudged sentence. But no more. “In the Military Justice Act of 2016, . . . Congress in- troduced segmented sentencing in which a separate term of confinement and fine is adjudged for each specification [for] which there was a finding of guilty when sentencing is conducted by the military judge.” United States v. Smith, 2024 CAAF LEXIS 759, at *20 n.5, 2024 WL 4941954, at *7 n.5 (C.A.A.F. Nov. 26, 2024). So, instead of “unitary sen- tencing” in the military justice system we now have “seg- mented sentencing.” 3 III. FACTS All of this leads us to the facts in this case. Here, the military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas, of two specifica- tions of willfully disobeying a superior commissioned of- ficer and one specification of assault consummated by a battery in violation of Articles 90 and 128, UCMJ, 10 2 A Table of Equivalent Nonjudicial Punishments has now been created to facilitate that calculation. Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 2, § V, para. 2-7-21, tbl.2-10 (2020). 3 Rule for Courts-Martial (R.C.M.) 1002(b)(3) expands on this point: “All punishments other than confinement or a fine avail- able under R.C.M. 1003, if any, shall be determined as a single, u