           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                            Senior Airman DAVID E. ALLGAIER
                                   United States Air Force

                                              ACM 38400

                                           14 October 2014

         Sentence adjudged 8 May 2013 by GCM convened at Patrick Air Force
         Base, Florida. Military Judge: William C. Muldoon.

         Approved Sentence: Dishonorable discharge, confinement for 2 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel Christopher T.
         Smith; Captain Thomas J. Alford; and Gerald R. Bruce, Esquire.

                                                  Before

                             MITCHELL, SANTORO, and WEBER
                                 Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



SANTORO, Judge:

       At a general court-martial, a military judge accepted the appellant’s pleas of guilty
to one specification of divers uses of cocaine, two specifications of divers uses of cocaine
while on duty as a sentinel or lookout, two specifications of divers introductions of
cocaine onto military bases, one specification of possession of cocaine, one specification
of possession of a Schedule II controlled substance (hydromorphone hydrochloride), and
one specification of use of cocaine, all in violation of Article 112a, UCMJ, 10 U.S.C.
§ 912a. Officer members sentenced the appellant to a dishonorable discharge,
confinement for 2 years, forfeitures of all pay and allowances, and reduction to E-1. The
convening authority approved the sentence as adjudged. Before us, the appellant argues
that (1) the military judge erred in denying relief pursuant to Article 13, UCMJ, 10
U.S.C. § 813; (2) the trial counsel’s sentencing argument was improper1; and (3) the
military judge abused his discretion in denying the appellant’s motion to merge
specifications for sentencing. We disagree and affirm.

                                                     Background

        The appellant was randomly selected to provide a urine sample pursuant to the
Air Force’s drug testing program. His sample contained the cocaine metabolite at a level
above the Department of Defense cutoff for reporting positive results. Investigators
arrested the appellant and, in a subsequent search, found three clear pipes with burned
tips in his possession. Those pipes later tested positive for cocaine residue.

       After waiving his Article 31, UCMJ, 10 U.S.C. § 831, rights, the appellant told
investigators that he began using crack cocaine after being introduced to it by a civilian
he met at a bar. He admitted becoming addicted to crack cocaine and said that he had
used cocaine both on and off base on multiple occasions, sometimes purchasing drugs
while in uniform and introducing them onto two Air Force installations. The appellant
told a fellow Airman that he spent approximately $16,000 on crack cocaine in just over
two months.

       The appellant’s duties as a security forces member included postings as an entry
controller at Patrick Air Force Base (AFB), Florida, and as a sentinel/lookout at Cape
Canaveral Air Force Station, Florida. While performing duties at both locations—and at
Patrick AFB, while armed—the appellant used crack cocaine on multiple occasions. He
also admitted smoking crack cocaine while driving on Patrick AFB.

      A subsequent “Bickel”2 urinalysis returned a result of 781,997 ng/mL of the
cocaine metabolite, the second-highest result ever recorded at the drug testing laboratory,
and above the Department of Defense positive-reporting cutoff of 100 ng/mL.

       After the appellant’s law enforcement interview and before his court-martial, he
was arrested by civilian police when a drug detection canine alerted on a vehicle in which
he was riding. The appellant had in his possession crack cocaine and hydromorphone
hydrochloride, a Schedule II controlled substance.

           Additional facts relevant to resolve the assigned errors are below.



1
    This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
    United States v. Bickel, 30 M.J. 277 (C.M.A. 1990).


                                                            2                                 ACM 38400
                          Unlawful Pretrial Confinement Credit

       The appellant alleges, as he did at trial, that the conditions of restraint imposed
upon him prior to trial were tantamount to confinement and therefore should result in a
129-day credit against his sentence. See United States v. Mason, 19 M.J. 274 (C.M.A.
1985). However, because the appellant’s confinement has been served, he instead
requests that the dishonorable discharge not be approved or, in the alternative, that it be
mitigated to a bad-conduct discharge.

       It is undisputed that the appellant was restricted to base, was further restricted to
the dormitory between 2100-0700, and had his presence in the dormitory checked twice
per night. The military judge found that there was no intent to punish the appellant, in
part because (1) the appellant was allowed to leave the base every time he requested to do
so; (2) he had access to the entire military base, with all of the services available on the
base, during his on- and off-duty hours; (3) his duty hours were not in excess of a
standard duty day; (4) his removal from normal security forces duties was reasonable
given the nature of his misconduct; and (5) other than being in the dormitory overnight,
he had unrestricted access to all base facilities.

       We review the military judge’s factual findings for clear error. United States v.
McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997). While the second and fifth findings above
are essentially the same, all of the military judge’s factual findings are amply supported
by the record and not clearly erroneous.

        Based on these factual findings, we review de novo whether the appellant is
entitled to pretrial confinement credit. See United States v. Smith, 56 M.J. 290, 292
(C.A.A.F. 2002).

       Article 13, UCMJ, states:

              No person, while being held for trial, may be subjected to
              punishment or penalty other than arrest or confinement upon
              the charges pending against him, nor shall the arrest or
              confinement imposed upon him be any more rigorous than the
              circumstances required to insure his presence, but he may be
              subjected to minor punishment during that period for
              infractions of discipline.

Article 13, UCMJ, does not specifically address other forms of pretrial restraint.
However, Rule for Courts-Martial (R.C.M.) 304(f) provides:

              Pretrial restraint is not punishment and shall not be used as
              such. No person who is restrained pending trial may be


                                             3                                   ACM 38400
              subjected to punishment or penalty for the offense which is
              the basis for that restraint. Prisoners being held for trial shall
              not be required to undergo punitive duty hours or training,
              perform punitive labor, or wear special uniforms prescribed
              only for post-trial prisoners. This rule does not prohibit
              minor punishment during pretrial confinement for infractions
              of the rules of the place of confinement. Prisoners shall be
              afforded facilities and treatment under regulations of the
              Secretary concerned.

       “The decision to impose pretrial restraint, and, if so, what type or types, should be
made on a case-by-case basis . . . [and t]he restraint should not be more rigorous than the
circumstances require to ensure the presence of the person restrained or to prevent
foreseeable serious criminal misconduct.” R.C.M. 304(c), Discussion.

       We consider several factors in resolving this issue. Among them are:

              1. What similarities, if any, in daily routine, work
              assignments, clothing attire, and other restraints and control
              conditions exist between sentenced persons and those
              awaiting disciplinary disposition?

              2. If such similarities exist, what relevance to customary and
              traditional military command and control measures can be
              established by the government for such measures?

              3. If such similarities exist, are the requirements and
              procedures primarily related to command and control needs,
              or do they reflect a primary purpose of stigmatizing persons
              awaiting disciplinary disposition?

              4. If so, was there an intent to punish or stigmatize a person
              waiting disciplinary disposition?

Smith, 53 M.J. at 172 (citing Francis A. Gilligan & Fredric I. Lederer, Court-Martial
Procedure § 4-90.00 at 136–37 (2d ed. 1999)) (internal quotation marks omitted).

       We conclude, as did the military judge, that there was no violation of Article 13,
UCMJ. The appellant had full use of all base facilities, received permission to leave base
each time he asked, and performed military duties appropriately tailored to the
misconduct to which he confessed. His further restriction to his dormitory during regular
sleeping hours does not make his situation tantamount to confinement. See United States
v. Rendon, 58 M.J. 221, 225–26 (C.A.A.F. 2003) (holding that while appellee was


                                              4                                    ACM 38400
geographically restricted and faced the moral restraints attendant to the limitations
imposed upon him, restriction to base was not tantamount to confinement).

                                   Sentencing Argument

       The appellant argues that trial counsel improperly argued the following as
aggravating factors: (1) the level of the cocaine metabolite in the appellant’s urine,
(2) the appellant’s use of cocaine while on duty as a sentinel, and (3) the physiological
effects of cocaine use.

       Trial defense counsel did not object to the prosecution’s argument; we therefore
review for plain error. See United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007);
see also United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001). “[T]o prevail under a
plain error analysis, [the appellant] must demonstrate that: ‘(1) there was an error; (2) it
was plain or obvious; and (3) the error materially prejudiced a substantial right’” of the
appellant. Erickson, 65 M.J. at 223 (quoting United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)).

       “A trial counsel is charged with being a zealous advocate for the Government.”
United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003) (citing United States
v. Nelson, 1 M.J. 235, 238 (C.M.A. 1975)). As a zealous advocate, trial counsel may
“argue the evidence of record, as well as all reasonable inferences fairly derived from
such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citing Nelson,
1 M.J. at 239). During sentencing argument, “trial counsel is at liberty to strike hard, but
not foul, blows.” Baer, 53 M.J. at 237. Trial counsel may not “seek unduly to inflame
the passions or prejudices of the court members.” United States v. Clifton, 15 M.J. 26, 30
(C.M.A. 1983) (citing United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976)).

        The court heard evidence of the level of the cocaine metabolite in the appellant’s
urine and of the Department of Defense cutoff for reporting positive results. The court
also heard evidence that the appellant’s tests were the 18th (initial test) and 2nd (second
test) highest results ever reported by the drug testing laboratory. The stipulation of fact,
to which the appellant agreed, contained evidence of his drug use while on duty as a
sentinel. Finally, a prosecution forensic toxicologist testified about the physiological
effects of cocaine use. Thus, we conclude that there was evidence in the record to
support trial counsel’s argument.

        We next turn to whether the argument itself was improper. The appellant admitted
being addicted to crack cocaine and repeatedly using it during the periods covered by the
urinalyses. He also admitted to spending $16,000 on cocaine in a several-week period.
We do not believe that trial counsel’s references to the 18th- and 2nd-highest reported
results were unduly prejudicial given the state of the evidence. Similarly, trial counsel’s
arguments about the effects of cocaine use—particularly in this case when the appellant


                                             5                                   ACM 38400
was using drugs while armed and guarding critical assets—appropriately highlighted the
significance of the appellant’s conduct and were not unduly prejudicial. We find no error,
plain or otherwise, and reject this assignment of error.

                               Unreasonable Multiplication of Charges

       Four specifications were the subject of a defense motion for merger.
Specifications 2 and 4, respectively, alleged the use and introduction of cocaine onto
Patrick AFB (the “Patrick specifications”). Specifications 3 and 5, respectively, alleged
the use and introduction of cocaine onto Cape Canaveral Air Force Station (the “Cape
Canaveral specifications”). Trial defense counsel argued that the Patrick specifications
should be merged, as should the Cape Canaveral specifications, as each set arose from the
same course of conduct. The military judge granted the motion with respect to the Cape
Canaveral specifications but denied it as to the Patrick specifications.3 The military judge
distinguished the Cape Canaveral specifications from the Patrick specifications in that the
appellant used the entire quantity of cocaine he introduced onto Cape Canaveral
immediately after introducing it, whereas he retained for later use portions of the cocaine
he introduced onto Patrick AFB.

        When reviewing issues of unreasonable multiplication, we apply a five-part test
that considers: (1) whether an objection was made at trial, (2) whether the specifications
are aimed at distinct criminal acts, (3) whether the number of charges and specifications
misrepresent or exaggerate the charged criminality, (4) whether the number of charges
and specifications unreasonably increase the punitive exposure, and (5) whether the
evidence shows prosecutorial overreaching or abuse in drafting the charges.
United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing United States v. Quiroz,
55 M.J. 334, 338 (C.A.A.F. 2001)). The factors are to be balanced, with no single factor
dictating the result. Id. We review a military judge’s determination that charges were
not unreasonably multiplied for an abuse of discretion. Id.

       In United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012), our superior court
stated the concept of unreasonable multiplication of charges may apply differently to
findings than to sentencing. In that case, the military judge ruled that the three offenses
the accused was charged with were not multiplicious. Id. at 21. He deferred ruling on

3
  We recognize that the military judge could have exercised his authority to dismiss either Specification 3 or
Specification 5 of the Charge on unreasonable multiplication of charges grounds rather than merge the two offenses,
given the closely-related nature of the offenses. See United States v. Campbell, 71 M.J. 19, 25 (C.A.A.F 2012)
(holding that in the context of unreasonable multiplication of charges, a military judge has broad discretion to
dismiss offenses, merge offenses, or merge offenses only for purposes of sentencing). We find no abuse of authority
in the military judge’s decision to merge the offenses for sentencing instead of dismiss one of the specifications,
particularly since this is the remedy trial defense counsel requested with regard to this set of specifications.
Cf. United States v. Elespuru, 73 M.J. 326, 329–30 (C.A.A.F. 2014) (recognizing that dismissal of one specification
charged in the alternative of another may be appropriate where the factfinder returns findings of guilt on both
specifications, even where the issue has been waived at trial.)


                                                        6                                            ACM 38400
the issue of unreasonable multiplication of charges until sentencing, at which time he
merged the three offenses into one for purposes of sentencing. Id. The court found the
military judge did not abuse his discretion, noting it was within the judge’s discretion to
conclude that for sentencing purposes the “specifications should be merged and that it
would be inappropriate to set the maximum punishment based on an aggregation of the
maximum punishments for each separate offense.” Id. at 25.

       Applying Campbell and Quiroz to this case, we find that the military judge did not
abuse his discretion in determining that Specifications 2 and 4 were not an unreasonable
multiplication of charges. The specifications were aimed at different crimes with distinct
elements and conduct that occurred on different occasions. The Government’s charging
scheme did not exaggerate the appellant’s criminality or unreasonably increase his
punitive exposure. We find no evidence of prosecutorial overreaching or abuse.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are AFFIRMED.



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                             7                                  ACM 38400
