U.S.A v. Joshua

• Decision Date: 14 June 2010
• Docket Number: No. 10-6281.,10-6281.
• Parties: UNITED STATES of America, Petitioner-Appellant,v.Benjamin Barnard JOSHUA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

607 F.3d 379

UNITED STATES of America, Petitioner-Appellant,v.Benjamin Barnard JOSHUA, Respondent-Appellee.

No. 10-6281.

United States Court of Appeals Fourth Circuit.

Argued May 10, 2010.

Decided June 14, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Anisha S. Dasgupta, United States Department of Justice, Washington, D.C., for Appellant. Lisa Hertzer Schertler, Schertler & Onorato, LLP, Washington, D.C., for Appellee. ON BRIEF: Tony West, Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, United States Department of Justice, Washington, D.C.; George E.B. Holding, United States Attorney, R.A. Renfer, Jr., Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant.

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge GREGORY and Judge AGEE concurred.

OPINION

DUNCAN, Circuit Judge:

Section 4248 of Title 18, enacted in the Adam Walsh Child Protection and Safety Act of 2006, authorizes the civil commitment of “sexually dangerous” persons “in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). The district court dismissed the government's petition for civil commitment under § 4248 upon finding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the United States Bureau of Prisons (“BOP”)-what the BOP calls a “contractual boarder”-was not “in the custody of the Bureau of Prisons” under the statute. For the reasons that follow, we affirm.¹

I.

Appellee Benjamin Barnard Joshua was an Army officer stationed in Germany. He was prosecuted by military court-martial in 1995 for sexually molesting children in violation of the Uniform Code of Military Justice (the “UCMJ”), 10 U.S.C. §§ 801-946. After Joshua pleaded guilty, the court-martial sentenced him to 25 years imprisonment. The court-martial also ordered loss of pay and dishonorable discharge. Joshua began serving his prison sentence with an Army garrison in Germany. He was later transferred to the United States Disciplinary Barracks in Leavenworth, Kansas (“USDB Leavenworth”), operated by the military.

In June 2001, when USDB Leavenworth was being down-sized, the Army transferred Joshua to the BOP. He was initially housed at the Federal Correctional Institute in Sandstone, Minnesota, and later transferred to the Federal Correctional Institute in Butner, North Carolina. Because of his military prisoner status, the BOP housed Joshua under a May 1994 “Memorandum of Agreement” between the Army and BOP (the “Memorandum”) regarding “Transfer of Military Prisoners to the Federal Bureau of Prisons.” J.A. 67. Under this agreement, the BOP promised to house up to 500 military prisoners for the Army's convenience. The BOP has called such prisoners “[c]ontractual boarders.” 28 C.F.R. § 550.55(b)(3). Although they become “subject to all [ ]BOP administrative and institutional policies and procedures,” the Memorandum states that military prisoners within BOP facilities remain “in permanent custody of the U.S. Army,” which “retain[s] clemency authority.” J.A. 68-69.

On March 9, 2009, eight days before Joshua's scheduled release, the Attorney General certified him as “sexually dangerous” and the government filed a petition for civil commitment under § 4248.² Joshua moved to dismiss the petition, claiming that he was not “in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). Reasoning that “custody” in this context referred to legal authority over Joshua's sentence (“legal custody”) rather than to immediate physical confinement by the BOP (“physical custody”), the district court granted the motion to dismiss. This appeal followed.

On February 2, 2010, the government filed a motion in the district court to stay Joshua's release pending appeal. The district court denied that motion on March 10, 2010, and the government sought similar relief in this court. Recognizing the potential for our decision on the motion to moot the underlying appeal-for Joshua would likely be outside the BOP's control once released-we granted temporary relief and expedited briefing and oral argument.

II.

This appeal “raises a question of statutory interpretation, a quintessential question of law, which we review de novo.” Stephens ex rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir.2009). Section 4248 lists three categories of people whom the Attorney General may commit for sexual dangerousness:

In relation to a person [1] who is in the custody of the Bureau of Prisons, or [2] who has been committed to the custody of the Attorney General pursuant to section 4241(d), or [3] against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person, the Attorney General ... may certify that the person is a sexually dangerous person....

18 U.S.C. § 4248(a) (emphasis added). Because the government contends that Joshua falls within the first category,³ we must interpret the statutory language “in the custody of the Bureau of Prisons.” Id. Reasoning that “custody” in this context refers to legal rather than physical custody, Joshua asserts that this statutory language does not cover military prisoners convicted and sentenced by court-martial but then housed within a BOP facility for the Army's convenience. Although declining to define “custody,” the government argues that Congress intended the language to cover people serving a military prison sentence within a BOP facility.

A.

Because the legal issue presented concerns Joshua's confinement by civilian authorities after being convicted and sentenced by military court-martial, we preface our analysis by clarifying the difference between the military and civilian criminal justice and penal systems. Having markedly different substantive laws and separate adjudicative proceedings “the[se] systems are separate as a matter of law.” United States v. Dowty, 48 M.J. 102, 106 (C.A.A.F.1998); see also Schlesinger v. Councilman, 420 U.S. 738, 746, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) (“[O]f necessity, military law ... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”).

Congress has enacted numerous federal criminal statutes, codified mostly in Title 18, that are applicable to civilians and military personnel alike. Unlike states' criminal laws arising from a plenary power to legislate for the general welfare, federal criminal statutes are somewhat limited because they must derive from Congress's powers specifically enumerated by Article I, Section 8. By contrast, the UCMJ contains broader criminal prohibitions applicable to military personnel, codified in Title 10, that derive from Congress's constitutional authority “to make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const. art I, § 8, cl. 14; see Weiss v. United States, 510 U.S. 163, 177, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994) (“[T]he Constitution contemplates that Congress has plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline.” (internal quotations omitted)). Accordingly, “[w]hile a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community.” Parker v. Levy, 417 U.S. 733, 749, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). For example, the UCMJ contains criminal prohibitions against insubordination, 10 U.S.C. § 889, maltreatment of subordinates, 10 U.S.C. § 893, and malingering, 10 U.S.C. § 915.

These distinct bodies of criminal law are enforced by different prosecutorial and court systems. Whereas the Attorney General has responsibility for prosecuting federal crimes, Congress granted him no authority to enforce the UCMJ against military personnel. See 10 U.S.C. §§ 822-24 (reserving such authority to the President, the Secretary of Defense, the Secretary for each military branch, and various commanding military officers). Furthermore, whereas “civilian courts are the normal repositories of power to try persons charged with crimes against the United States,” Reid v. Covert, 354 U.S. 1, 21, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), Congress created a separate court system for the military under Article I see Chappell v. Wallace, 462 U.S. 296, 302, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (“Congress has ... established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure.”). This system consists of military trial courts called “courts-martial,” Courts of Criminal Appeals, and the United States Court of Appeals for the Armed Forces.

The civilian and military court systems have markedly different safeguards and procedures. See O'Callahan v. Parker, 395 U.S. 258, 261-62, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969) (recognizing “the establishment and development of a system of military justice with fundamental differences from the practices in the civilian courts”) overruled on other grounds, Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987); United States v. Mariea, 795 F.2d 1094, 1101 (1st Cir.1986) (“[M]ilitary courts-martial and the civilian court system constitute totally separate systems of justice, with different procedures, protections and personnel.”). For example, whereas federal district judges have life tenure and authority to hear any matter properly presented, military trial judges not only lack life tenure but also “do not serve for fixed terms and may perform judicial duties only when assigned to do so.” Weiss, 510 U.S. at 168, 114 S.Ct. 752; see Palmore v. United States, 411 U.S. 389, 404, 93...