                          UNITED STATES, Appellee


                                        v.


                    Phillip KING, Jr., Senior Airman
                        U.S. Air Force, Appellant

                                  No. 02-0386

                            Crim. App. No. 34155


       United States Court of Appeals for the Armed Forces


                       Argued November 6, 2002

                       Decided February 19, 2003


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. BAKER, J., filed an
opinion concurring in the result, in which ERDMANN, J., joined.


                                    Counsel

For Appellant: Captain Kyle R. Jacobson (argued); Colonel
Beverly B. Knott and Major Jeffrey A. Vires (on brief).

For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel LeEllen Coacher and Lieutenant Colonel Lance B.
Sigmon(on brief); Major Jennifer L. Rider and Captain Adam Oler.

Military Judge: W. Thomas Cumbie




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. King, No. 02-0386/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Appellant was tried by a general court-martial composed of

a military judge sitting alone at Fairchild Air Force Base,

Washington.   Pursuant to his pleas of guilty, Appellant was

convicted of larceny (13 specifications), making a false

official statement (two specifications), and failing to obey a

lawful order (one specification), in violation of Articles 121,

107, and 92, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. §§ 921, 907, and 892 (2002).

     The military judge sentenced Appellant to a bad-conduct

discharge, confinement for 29 months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.

Pursuant to the terms of a pretrial agreement, the convening

authority reduced Appellant’s confinement to 24 months but

otherwise approved the adjudged sentence.   On appeal, the Air

Force Court of Criminal Appeals affirmed the findings of guilty

and the sentence.   Thereafter, we granted review of the

following issues:

                                I.

          WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
          MISINTERPRETED THIS COURT’S DECISION IN UNITED
          STATES V. ROCK, 52 M.J. 154 (C.A.A.F. 1999),
          WHICH   HELD   THAT    PERIODS   OF   BOTH   ACTUAL
          CONFINEMENT   AND    RESTRICTION    TANTAMOUNT   TO
          CONFINEMENT MUST BE APPLIED AGAINST A MAXIMUM
          CONFINEMENT LIMITATION IN A PRETRIAL AGREEMENT.




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United States v. King, No. 02-0386/AF



                                II.

           WHETHER APPELLANT IS ENTITLED TO MASON CREDIT FOR
           THE PERIOD DURING WHICH HE WAS RESTRICTED BECAUSE
           THE RESTRICTIONS PLACED ON HIM WERE TANTAMOUNT TO
           CONFINEMENT.

     As to Issue II, we hold that Appellant is not entitled to

Mason credit because the pretrial restrictions placed on his

liberty were not tantamount to confinement.   We further hold

that in the future, failure at trial to raise the issue of

pretrial restriction tantamount to confinement waives that issue

for purposes of appellate review in the absence of plain error.

     Given our resolution of Issue II, we need not address

Issue I.

               FACTUAL AND PROCEDURAL BACKGROUND

     When allegations of Appellant’s larcenies surfaced, his

commander issued a lawful order restricting him to the base.

The extent of that restriction was as follows:

     You are hereby restricted to Fairchild Air Force
     Base effective 3 Mar 00. You are also restricted
     from all base facilities with the exception of
     your dormitory residence, the Warrior Dining
     Facility, building 2001, the Area Defense Counsel,
     and any facility required to assist your defense
     counsel with pretrial preparation. All other locations
     on base you may need to visit requires permission
     by me or the First Sergeant.

     At trial, Appellant’s defense counsel made no motion for

credit against confinement for that restriction -– credit which




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United States v. King, No. 02-0386/AF


would have been available had that restriction been tantamount

to confinement.     See United States v. Mason, 19 M.J. 274 (C.M.A.

1985)(summary disposition).       However, while Appellant’s case was

before the Court of Criminal Appeals on mandatory review,1

appellate defense counsel for the first time argued that

Appellant was entitled to credit against confinement for the

pretrial restriction.      In support of this argument, appellate

defense counsel offered, and the Court of Criminal Appeals

admitted, a written declaration signed by Appellant which

stated:

      Building 2001 that is referenced in the letter
      restricting me was the squadron building where
      the orderly room is. While I was restricted, I
      worked for the First Sergeant, doing whatever he
      told me to do where he told me to do it. This
      included cleaning around Building 2001, cleaning
      at the enlisted club, cleaning at the dormitory,
      and helping move furniture at the dining facility.
      I was also instructed to maintain a mandatory
      dental appointment that had been scheduled before
      the restriction. In addition to the restrictions
      in the letter, I had to check in twice a day at the
      orderly room, once at [7:30 a.m.] and once again
      between [3:30 and 4:30 p.m.] Whoever was super-
      vising my work had to call the First Sergeant and
      confirm that I was present and had arrived on time.

      After I was restricted, I twice asked for permission
      to go elsewhere. I once asked to go to the commis-
      sary; my First Sergeant said he would check with the
      commander and get back to me, but he never got back to
      me. About the same time, I also asked to go to the
      gym; the First Sergeant told me that the commander
      had said no and that I should learn how to do
      calisthenics in the dorm. I thought about asking for

1
  See Article 66(b), Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 866(b)(2002).


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United States v. King, No. 02-0386/AF


     exceptions again (including to go to the base exchange,
     the shoppette, and even to go get gas for my vehicle),
     but the earlier negative results to my requests led me
     to believe that no exceptions to the restriction order
     would be allowed.

     Before addressing the merits of Appellant’s argument, the

Court of Criminal Appeals first considered whether the issue

was waived by the fact it was not raised at trial.   Although

that court felt there was “considerable merit” to applying

waiver, it felt “constrained” not to apply waiver because of

this Court’s decisions in United States v. Huffman, 40 M.J. 225

(C.M.A. 1994), and United States v. Scalarone, 54 M.J. 114

(C.A.A.F. 2000).   See United States v. King, ACM 34155, slip op.

at 3 (A.F.Ct.Crim.App. Jan. 15, 2002).

     As to the merits, the Court of Criminal Appeals held that

even if Appellant was entitled to Mason credit for the

restriction (something it did not decide), he would not have

benefited from it because -– in that court’s view -- under

United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999), the credit

would be applied against the confinement adjudged at the court-

martial, not the confinement approved by the convening

authority.   King, ACM 34155, slip op. at 3.   Thus, in the lower

court’s view, because the approved confinement was less than the

adjudged confinement would be if reduced by the number of days

Appellant was restricted, it did not matter that Appellant might

be entitled to Mason credit.


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United States v. King, No. 02-0386/AF


      As set out above, the correctness of the lower court’s

interpretation of Rock is now before us under issue I.             However,

because we conclude Appellant’s restriction was not tantamount

to confinement, and that he was, therefore, not entitled to any

Mason credit, we need not decide whether the lower court’s

interpretation of Rock was correct.         Nonetheless, we direct the

bench and bar to our recent decision in United States v.

Spaustat, 57 M.J. 256, 261-62 (C.A.A.F. 2002), which, like Rock,

addresses whether credits against confinement are subtracted

from adjudged versus approved sentences.

                               DISCUSSION

                           Appellant’s Case

      In United States v. Allen, 17 M.J. 126 (C.M.A. 1984),

this Court interpreted a Department of Defense Instruction as

requiring day-for-day credit against confinement for time an

accused spends in lawful pretrial confinement.           In Mason, 19

M.J. at 274, this Court extended Allen credit to situations

involving pretrial restriction that is “tantamount” or

“equivalent” to confinement, but that do not involve actual

incarceration.2     We did this because we “recognized that the

effect which restriction tantamount to confinement has upon an

appellant is the practical equivalent of the effect which occurs


2
  Pretrial restriction that is not tantamount to confinement is permissible
under Rule for Courts-Martial 304(a)(2) [hereinafter R.C.M.], and does not
give rise to credit against confinement.


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United States v. King, No. 02-0386/AF


from a similar period of actual pretrial confinement.”    United

States v. Gregory, 21 M.J. 952, 955 (A.C.M.R. 1986), aff’d, 23

M.J. 246 (C.M.A. 1986)(summary disposition).

     We review de novo the ultimate legal question of whether

certain pretrial restrictions are tantamount to confinement.

See United States v. Guerrero, 28 M.J. 223 (C.M.A. 1989)

(conducting de novo review of that question); see also United

States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002)(de novo review

of ultimate question whether accused was subject to pretrial

punishment in violation of Article 13, UCMJ, 10 U.S.C.

§ 813)(2002)).   “The determination whether the conditions of

restriction are tantamount to confinement must be based on the

totality of the conditions imposed.”    United States v. Smith,

20 M.J. 528, 530 (A.C.M.R. 1985).

     We consider “the prior examples of such cases . . . and the

factors gleaned from them” in determining whether pretrial

restriction is tantamount to confinement.    United States v.

Calderon, 34 M.J. 501, 506 (A.F.C.M.R. 1991).    Factors to

consider include

     the nature of the restraint (physical or moral),
     the area or scope of the restraint (confined to post,
     barracks, room, etc.), the types of duties, if any,
     performed during the restraint (routine military
     duties, fatigue duties, etc.), and the degree of
     privacy enjoyed within the area of restraint. Other
     important conditions which may significantly affect
     one or more of these factors are: whether the accused
     was required to sign in periodically with some supervising
     authority; whether a charge of quarters or other authority

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United States v. King, No. 02-0386/AF


      periodically checked to ensure the accused’s presence;
      whether the accused was required to be under armed or
      unarmed escort; whether and to what degree [the] accused
      was allowed visitation and telephone privileges; what
      religious, medical, recreational, educational, or other
      support facilities were available for the accused’s use;
      the location of the accused’s sleeping accomodations; and
      whether the accused was allowed to retain and use his
      personal property (including his civilian clothing).

Smith, 20 M.J. at 531-32, cited with approval in Guerrero,

28 M.J. at 225.

      This Court addressed in Guerrero whether an accused was

entitled to Mason credit for his pretrial restriction.   In

Guerrero, the appellant was initially restricted to the post.

However, he violated that restriction and then was

      restricted to his room, the latrine, the chapel, mess
      hall and other places deemed to be his place of duty
      as long as he was escorted by a noncommissioned officer
      [hereinafter NCO]. During off-duty time he could go any
      other place necessary provided he was escorted by an NCO.
      He was required “to sign in” with the CQ (Charge of
      Quarters) every 30 minutes until normal “lights out”
      for the company.

28 M.J. at 224 (quoting lower court opinion).   At trial,

Guerrero’s defense counsel “expressly declined to equate [the]

appellant’s restriction at any time with confinement.”   It was

only on appeal that Guerrero “asserted for the first time. . .

that his pretrial restriction was tantamount to confinement[.]”

Id.   On that record, “in light of the conditions of restriction”

and the fact that Guerrero’s “belated claim” was made only on

appeal, our Court concluded that Guerrero’s restriction was not

tantamount to confinement.   Id.

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United States v. King, No. 02-0386/AF


     Obviously, Guerrero differs from Appellant’s case because

defense counsel in Guerrero stated on the record: “[W]e do not

claim [the restriction] was tantamount to confinement,” 28 M.J.

at 22, while in Appellant’s case, the record is silent.

Nonetheless, in Guerrero, trial defense counsel’s failure to

argue the restriction was tantamount to confinement was treated

by this Court as evidence that the restriction was, in fact, not

the same as confinement.      Moreover, by the time Appellant was

court-martialed, this Court also had stated in a related area

that when an accused fails to complain of the conditions of his

pretrial confinement, that is “strong evidence” that the accused

is “not being punished in violation of Article 13.”           Huffman,

40 M.J. at 227.3

     As a result, taking into account Guerrero, Huffman, and

Smith, and considering the nature of Appellant’s pretrial

restriction and the fact he did not argue at trial that it was

tantamount to confinement, we hold that Appellant’s pretrial

restriction was not tantamount to confinement, and that he is

not entitled to any Mason credit.

                            Future Cases

     The Court of Criminal Appeals felt compelled by our

precedent to consider Appellant’s request for Mason credit,


3
  An accused is entitled to additional sentence credit for violations of
Article 13, UCMJ, 10 U.S.C. § 813 (2002). See R.C.M. 305(k); United States
v. Suzuki, 14 M.J. 491 (C.M.A. 1983).


                                     9
United States v. King, No. 02-0386/AF


despite its belief there was “considerable merit” to applying

waiver.   However, in the future, failure at trial to seek Mason

credit for pretrial restriction tantamount to confinement will

constitute waiver of that issue in the absence of plain error.

See United States v. Chatman, 46 M.J. 321 (C.A.A.F.

1997)(announcing new, prospective rule in post-trial “new

matter” area).

     The purpose of the so-called raise-or-waive rule is to

promote the efficiency of the entire justice system by requiring

the parties to advance their claims at trial, where the

underlying facts can best be determined.   As the Supreme Court

stated:

          Ordinarily an appellate court does not give
     consideration to issues not raised below. For our
     procedural scheme contemplates that parties shall come
     to issue in the trial forum vested with authority to
     determine questions of fact. This is essential in
     order that parties may have the opportunity to offer
     all the evidence they believe relevant to the issues
     which the trial tribunal is alone competent to decide;
     it is equally essential in order that litigants may not
     be surprised on appeal by final decision there of
     issues which they have had no opportunity to introduce
     evidence. . . . Recognition of this general principal has
     caused this Court to say on a number of occasions that
     the reviewing court should pass by, without decision,
     questions which were not urged [below].

Hormel v. Helvering, 312 U.S. 552, 556 (1941).   See also United

States v. Olano, 507 U.S. 725 (1993).

     Of course, we recognize that a Court of Criminal Appeals

has the unique power to determine for itself, from the existing


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United States v. King, No. 02-0386/AF


record, what the facts of a case are.      See Art. 66(c), UCMJ,

10 U.S.C. § 866(c)(2002).    It also has the power, in certain

circumstances, to conduct limited fact-finding of its own.     See

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).     But these

powers fall far short of the power the parties themselves have

to develop fully the factual record at trial through compulsory

process and confrontation -– tools that are not available in a

Court of Criminal Appeals.    Thus, the reasons for applying

waiver in the military justice system are just as compelling as

those in the civilian system.

     This Court already has applied waiver to the issue of

sentence credit flowing from restriction tantamount to

confinement.    In United States v. Chapa, 57 M.J. 140 (C.A.A.F.

2002), the appellant was subjected to pretrial restrictions for

approximately 140 days.    At trial, he argued only that he was

subjected to pretrial punishment in violation of Article 13.

Nonetheless, the military judge ruled the restriction was

tantamount to confinement and awarded the appellant 136 days of

credit against confinement.      However, “[t]he military judge did

not mention R.C.M. 305; nor did she mention . . . Mason . . . or

Gregory[.]”    57 M.J. at 141.

     Before this Court, Chapa argued he was entitled to

additional day-for-day credit, asserting that his commander had




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United States v. King, No. 02-0386/AF


not complied with the requirements of R.C.M. 305.4            We refused

to consider his argument, however, and instead ruled that

because “[h]e did not assert [at trial] that his restriction was

tantamount to confinement, [and] did not assert a violation of

the requirements for review of pretrial restraint under R.C.M.

305, . . . any issue founded on noncompliance with R.C.M. 305

was waived.”    Id. at 141, 143.

      Consequently, for all the reasons in support of waiver, we

now hold that once this opinion becomes final, failure at trial

to seek Mason credit for conditions of restriction alleged to be

tantamount to confinement waives that issue on appeal in the

absence of plain error.5      See United States v. Ecoffey, 23 M.J.

629, 631 (A.C.M.R. 1986)(failure to raise Mason issue at trial

waives it on appeal); United States v. Newberry, 35 M.J. 777,

780 n.2 (A.C.M.R. 1992)(same); R.C.M. 905(e)(raise-or-waive

rule).

                                 CONCLUSION

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.


4
  R.C.M. 305 imposes on a commander certain requirements when the commander
places an accused in actual pretrial confinement. Failure to comply with
these requirements results in credit against post-trial confinement under
R.C.M. 305(k). The same is true for restriction tantamount to confinement.
United States v. Gregory, 21 M.J. 952, 955 (A.C.M.R. 1986), aff’d, 23 M.J.
246 (C.M.A. 1986)(summary disposition).
5
  The case before us does not present the issue of whether waiver is
applicable when credit for illegal pretrial punishment is not requested at
trial.


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United States v. King, No. 02-0386/AF


     BAKER, Judge, with whom ERDMANN, Judge, joins

(concurring in result):

     I agree with the majority's conclusion that Appellant

was not due credit pursuant to United States v. Mason, 19

M.J. 274 (C.M.A. 1985), and therefore concur in the result.

Even if the Court of Criminal Appeals found as fact all

that was in Appellant's affidavit, Appellant's restriction

was not tantamount to confinement.   Among other things,

Appellant was able to leave the base on at least one

occasion without notice and without restriction.     Perhaps

for this reason, Appellant's counsel did not raise the

issue of Mason credit at trial.

     I write separately for two reasons.   First, in

concluding that "even if the [A]ppellant were entitled to

credit for the 25 days he served under restriction, such

credit would be applied against his adjudged sentence

rather than the approved sentence under the [pretrial

agreement]," the Air Force Court of Criminal Appeals

misread United States v. Rock, 52 M.J. 154 (C.A.A.F. 1999),

and reached a conclusion contrary to this Court's decision

in United States v. Spaustat, 57 M.J. 256 (C.A.A.F. 2002),

decided after the lower court's decision in this case.     As

the law is clear in this area, we should be equally clear

when the lower court misstates the law.    Second, this
United States v. King, No. 02-0386/AF


Court’s new rule of waiver would seem to relieve military

judges of responsibility to give credit where credit is

due.

       The number of petitions and cases this Court hears

involving post-trial claims of credit can be read to

suggest that the Huffman construct of affirmative waiver is

unworkable as a general rule, or at least an impractical

source of unnecessary litigation.    However, it may also

suggest that the concepts of credit and credit calculation

are not as well understood in the field as we might expect.

First tour counsel may not always distinguish between the

variety of credits due under Mason, United States v.

Suzuki, 14 M.J. 491 (C.M.A. 1983), and United States v.

Allen, 17 M.J. 126 (C.M.A. 1984), with the same ease as

appellate courts.

       The Court of Criminal Appeals itself, misread Rock,

and misconstrued the manner of credit calculation.    In

Rock, 52 M.J. at 157, this Court said

  Where there is a pretrial agreement that sets out a
  lesser limitation than that adjudged by the court-
  martial, however, a different result obtains. Where the
  agreement establishes a maximum confinement, for example,
  that is less than that adjudged by the court-martial,
  that lesser limit becomes the maximum total confinement
  that the accused lawfully can be made to serve. Where
  portions of that confinement have already been served,
  actually or constructively, the credit applies against
  the agreement, otherwise the accused's sentence will
  exceed the maximum lawful limit.


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United States v. King, No. 02-0386/AF


In Spaustat, this Court reiterated the point as applied to

Article 13, Uniform Code of Military Justice, 10 U.S.C. §

813 (2002), and Rule for Courts-Martial 305 [hereinafter

R.C.M.] credit:

  Furthermore, we recognize that applying confinement
  credit against the adjudged sentence in cases where there
  is a pretrial agreement can produce anomalous results,
  and it can deprive an appellant of meaningful relief for
  egregious violations of Article 13 or RCM 305....
  Accordingly, in order to avoid further confusion and to
  ensure meaningful relief in all future cases after the
  date of this decision, this Court will require the
  convening authority to direct application of all
  confinement credits for violations of Article 13 or RCM
  305 and all Allen credit against the approved sentence;
  i.e., the lesser of the adjudged sentence or the sentence
  that may be approved under the pretrial agreement.

Spaustat, 57 M.J. at 263-64.

     Nonetheless, the lower court concluded:   “Even if

appellant were entitled to credit for the 25 days he served

under restriction, such credit would be applied against his

adjudged sentence rather than the approved sentence under

the [pretrial agreement].”    (As a result, the Court of

Criminal Appeals did not reach a factual conclusion

regarding Appellant’s restriction.)

     Against this backdrop, I agree with the majority that

issues of Mason credit are better litigated at the trial

level.   In support of this position, the majority concludes

that the parties have far more power than do courts of

appeal to discover facts.    Whether or not this is accurate


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United States v. King, No. 02-0386/AF


as a comparative matter, or in general, see e.g., United

States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002)(Court of

Criminal Appeals has discretion to determine how additional

evidence will be obtained), the parties certainly have

within their reach adequate means of discovery to fully

litigate questions of credit at trial.          To this end, the

majority announces a prospective rule of waiver: “[F]ailure

at trial to raise the issue of pretrial restriction

tantamount to confinement waives that issue for purposes of

appellate review in the absence of plain error.”*           _ M.J.

(3).

       I would not be so quick to relieve military judges of

their responsibility for providing credit where credit is

due.    R.C.M 905(e) does not make military judges

spectators, devoid of responsibility for ensuring the fair

and just administration of justice.         If indeed an appellant

has been denied a liberty interest, which amounts to

confinement, he should have his claim to credit adjudicated



*
  If this is a new rule, it is not clear what rule it replaces. If the
rule is intended to overturn the reasoning in United States v.
Scalerone, 54 M.J. 114, 117 n.1 (C.A.A.F. 2000) then the court should
do so expressly. Alternatively, this Court should indicate why Article
13, Uniform Code of Military Juctice, 10 U.S.C.§ 113 (2002), claims are
distinct from claims pursuant to United States v. Mason, 19 M.J. 274
(C.M.A. 1985), in a manner warranting a separate application of waiver.
Nor is it clear whether there is a difference between plain error and
error in cases involving valid claims of credit. Absent such
discussion and distinction, the clarity the new rule is intended to
offer may be diluted in the field.


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United States v. King, No. 02-0386/AF


by competent judicial authority.

     If the Court is concerned about unnecessary appellate

credit litigation, we should ensure that military judges --

experienced in the law and its application -- ask on the

record whether an accused seeks any credit.    If the trial

judge does so and the accused is silent, or responds in the

negative, then surely the matter of credit is waived.    That

is a workable and simple solution that will prevent undue

litigation under either a preserved or plain error rubric.

     But that is not this case.    Appellant did not receive

restriction tantamount to confinement.    Therefore, it is

not surprising that counsel did not pursue a credit claim

at trial.




                             5
