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 Appellant’s 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 Appellant’s

sentence,3 finding that the military judge’s knowledge about the

Army policy was extraneous but properly within the common

knowledge of a military judge and that Military Rule of Evidence




1
  “Bridging the Gap” sessions, common in Army practice, are post-
trial meetings intended to be used as professional and skill
development for trial and defense counsel. See United States v.
Copening, 

, 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 Appellant’s sentence.

(C.A.A.F. 2004) (order granting review).
3
  United States v. McNutt, 

(A. Ct. Crim. App. 2003).

                                      2
United States v. McNutt, No. 04-0295/AR


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

Appellant’s sentence.4

       We hold that the military judge improperly considered the

collateral administrative effect of the “good-time” policy in

determining Appellant’s 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

Appellant’s 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.         He was absent until

4
    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
       Appellant’s sentence under Mil. R. Evid. 606(b).

(C.A.A.F. 2004)(order granting review).




                                      3
United States v. McNutt, No. 04-0295/AR


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 Appellant’s 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 Appellant’s court-martial, Captain (Cpt) Shahan,

Appellant’s 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

Appellant’s sentencing, the military judge told trial counsel

and defense counsel that he wanted to ensure Appellant actually




5
  10 U.S.C. §§ 885, 886 (2002).
6
  See R.C.M. 1105, 1107 (convening authority must consider
clemency matters submitted by accused before taking final action
on sentence).

                                      4
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

confinement” because the military judge had inappropriately

considered “good-time” credit when determining Appellant’s

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.



7
  The military judge’s 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 

.
And now before our Court, the unrebutted statements continue to
be unchallenged by appellate Government counsel.
8
  

(A.F.C.M.R. 1992).

                                      5
United States v. McNutt, No. 04-0295/AR


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

Army’s “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]ppellant’s otherwise lawful and appropriate sentence.”12




9
   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 member’s 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
    

.
11
    

633.


                                      6
United States v. McNutt, No. 04-0295/AR


                                 DISCUSSION

I.   The military judge erred in considering the Army’s good-time

policy in assessing Appellant’s 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 accused’s 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, 

, 424 (C.M.A. 1988)
(quoting United States v. Quesinberry, 

, 612, 

, 198 (1962)).
14
   

impact of a punitive discharge on
retirement benefits is a collateral consequence that should not
influence the members’ decision on the accused’s sentence). See
also United States v. Mamaluy, 

, 106, 

, 180 (1959) (stating that the sentences in other cases
cannot be given to court-martial members for comparative
purposes).
15
   

, 31 C.M.R. at 198 (holding that
members should not be informed of the specific consequences of a
bad-conduct discharge).

                                      7
United States v. McNutt, No. 04-0295/AR


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
                                      18
instruct on collateral matters.            In deciding whether the

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

flexible approach focusing on the military judge’s

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
   

v. Duncan, 

, 499 (C.A.A.F. 2000).
18
   See, e.g., United States v. Boyd, 

, 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, 

, 10 (C.A.A.F. 2003)
(affirming the military judge’s 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 Appellant’s future with
regard to his legal rights, economic opportunities, and social
acceptability” (internal quotations omitted)).
19
   

(internal quotations and citation
omitted).


                                      8
United States v. McNutt, No. 04-0295/AR


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 judge’s 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 Army’s policy.

Moreover, “good-time” credit is awarded as a consequence of the

20
   

United States v. Greaves, 

, 139
(C.A.A.F. 1997)).
21
   

States v. Howell, 

(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
   

, 27 C.M.R. at 181.


                                      9
United States v. McNutt, No. 04-0295/AR


convicted servicemember’s 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 Appellant’s sentence.      We hold that the military

judge erred in considering the Army’s “good-time” credit policy

when he assessed Appellant’s 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 Appellant’s sentence by relying on M.R.E.




24
     

.

                                     10
United States v. McNutt, No. 04-0295/AR


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 Appellant’s

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      As


25
   

, 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 accused’s 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., 

, 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 statute’s language is
plain, ‘the sole function of the courts is to enforce it
according to its terms.’” (citations omitted)).
28
   See 

.

                                     11
United States v. McNutt, No. 04-0295/AR


the Supreme Court has repeatedly emphasized, “[i]t is well

established that ‘when the statute’s 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, 

, 534 (2004)
(quoting Hartford Underwriters Ins. Co. v. Union Planters Bank,
N.A., 

, 6 (2000)). Principles of statutory
construction are used in construing the Manual for Courts-
Martial, United States. United States v. Lucas, 

,
22, 

, 22 (1951).

. Southeast Foods, Inc., 

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


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 judge’s mind

which is prohibited by Mil. R. Evid. 606,”33 the Court in Rice




31
   

   See United States v. Rice, 

, 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, 

, 374-
75 (C.A.A.F. 1995) (per curiam) (following Rice to conclude that
the military judge’s statement concerning his deliberative
processes at the accused’s original sentencing could not be
considered during a post-trial inquiry into the basis for the
sentence he imposed).
33
   

.




                                     13
United States v. McNutt, No. 04-0295/AR


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 judge’s] 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 Court’s 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
     

, 1263 (5th Cir. 1982) (en banc), rev’d on other
     grounds, 

(1984).
35
     

, 1255 (11th Cir. 1982).
36
     

.
37
     

(1904).

                                     14
United States v. McNutt, No. 04-0295/AR


       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

trial’s outcome or have it “overthrown or limited” by asking the

military judge to disclose his thoughts when he determined

Appellant’s 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

“judge’s 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
     

added).
40
     

1311 (5th Cir. 1978).
42
     

, 422 (1941).



                                     15
United States v. McNutt, No. 04-0295/AR


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

court’s denial of appellant’s habeas claim in part, the Eleventh

Circuit held that the lower court erred in relying on the trial

judge’s post-trial statements that he did not use an expert’s

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.

.
45
     

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


      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 judge’s 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

judge’s 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).

.
49
   

policy reasons were addressed by the Air
Force Court of Military Review in United States v. Rice, 

, 768 (A.F.C.M.R. 1985), aff’d, 

, 37-38 (1987),
when it held that M.R.E. 606(b) applies to military judges.
50
   

.

                                     17
United States v. McNutt, No. 04-0295/AR


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 judge’s 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
     

quotations and citations omitted).
53
     

v. McNutt, No. 04-0295/AR


      The second and third factors –- which we will label the

“finality” factors –- arguably support the conclusion that a

judge’s 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 Appellant’s sentence, is completely

different from an appellant’s 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

judge’s basis for assessing Appellant’s 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 

. See also Morrison v.
Kimmelman, 

, 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, 

, 820 (N-M. Ct. Crim.
App. 2001).



                                     19
United States v. McNutt, No. 04-0295/AR


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 accused’s sentence.

Therefore, we hold that the military judge erred in considering

the Army’s policy of “good-time” credit when assessing

Appellant’s 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 judge’s statements are considered, it is

apparent that he lengthened Appellant’s 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 court’s

decision affirming the findings.          We set aside the portion of

the lower court’s 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
United States v. McNutt, No. 04-0295/AR


review in light of Appellant’s improper confinement for ten days

and determine an appropriate remedy.




                                     21
United States v. McNutt, No. 04-0295/AR


       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 majority’s new rules restricting consideration by military

judges of collateral consequences during their deliberations on

sentencing.



1
    Ex parte Long, 

, 19 (1854).
United States v. McNutt, No. 04-0295/AR


     As to the majority’s return to the plain language of

Military Rule of Evidence (M.R.E.) 606(b), however, I concur and

applaud the majority’s 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 Government’s 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 Appellant’s sentence based on that policy.

     To the contrary, the record and the factual findings of the

court below establish only that Appellant’s 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 counsel’s

assertion that the military judge had made the post-trial

statement and that this assertion was unrebutted by the

Government.   To support Appellant’s claim, however, there is not


                                 2
United States v. McNutt, No. 04-0295/AR


now, nor has there ever been, any competent evidence of the

military judge’s 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, 

,

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.”    

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
    

(C.A.A.F. 1997).
3
    United States v. DuBay, 

, 

(1967).

                                  3
United States v. McNutt, No. 04-0295/AR


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 counsel’s 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   We are not

empowered by Congress to find such facts.   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


4
  United States v. Rice, 

(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, 

(C.A.A.F. 1995).
7
  

(C.M.A. 1984).

                                4
United States v. McNutt, No. 04-0295/AR


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 judge’s 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 good-
     conduct time, parole, eligibility for parole,
     retraining programs, and the like.9

     Hannan’s 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



8
   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
General’s Legal Center and School.

.
10
    United States v. Lewis, 

(C.M.A. 1982).

                                 5
United States v. McNutt, No. 04-0295/AR


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 court-
     martial 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.
12
  United States v. Lacy, 

, 288 (C.A.A.F. 1999)
(quoting United States v. Ballard, 

, 286 (C.M.A.
1985)).

                                 6
United States v. McNutt, No. 04-0295/AR


     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 Hannan’s

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


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
   

(C.A.A.F. 2000). In Duncan, we unanimously
affirmed a military judge’s instruction, over defense objection,
based on exactly the same Department of Defense Instruction.

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. 

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 Int’l
L.J. 475, 506 (1995).

                                 8
United States v. McNutt, No. 04-0295/AR


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 . . . .” 

(quoting 

).



                                 9
United States v. McNutt, No. 04-0295/AR


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 majority’s 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
     

.

                                  10
United States v. McNutt, No. 04-0295/AR


        [T]he general preference for prohibiting consideration
        of collateral consequences is applicable to the
        military judge’s 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 Army’s
        policy. Moreover, good-time credits are awarded as a
        consequence of the convicted servicemember’s 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 majority’s

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 majority’s 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 Appellant’s sentence. We hold
        that the military judge erred in considering the
        Army’s “good-time” credit policy when he assessed
        Appellant’s sentence.



                                  11
United States v. McNutt, No. 04-0295/AR


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

today’s 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 Army’s

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.
20
  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).

                                  12
United States v. McNutt, No. 04-0295/AR


     As written, however, there seems no reason not to apply the

majority’s 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   Many may question


21
   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, 

(C.A.A.F. 1997).
22
   

(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
   

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


whether the unspoken reason is the existence of a third general

rule in the majority’s 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 judge’s knowledge

and consideration of these collateral consequences

constitutes “extraneous prejudicial information” or

“extrajudicial knowledge” was answered by this Court in

:

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


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


     BAKER, Judge (concurring in part and dissenting in part):

     As the majority has correctly stated, generally “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.”   United States v. Griffin, 

(C.M.A. 1988) (quoting United States v. Quesinberry, 

, 612, 

, 198 (1962)).   This general rule is not

dependent on the sentencing forum.   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
United States v. McNutt, No. 04-0295/AR


     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.




                                 2