                       UNITED STATES, Appellee

                                    v.

                     Thomas A. CRAWFORD, Captain
                    U.S. Marine Corps, Appellant

                              No. 05-0266

                        Crim. App. No. 9901590

       United States Court of Appeals for the Armed Forces

                       Argued November 2, 2005

                        Decided March 6, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued);
Lieutenant Jennie L. Goldsmith, JAGC, USN (on brief); Lieutenant
Commander Jason S. Grover, JAGC, USN.

For Appellee: Lieutenant Kathleen A. Helmann, JAGC, USNR
(argued); Commander Charles N. Purnell, JAGC, USN (on brief);
Colonel William K. Lietzau, USMC, and Major Raymond E. Beal II,
USMC.

Military Judge:   T. B. Hamilton


       This opinion is subject to revision before final publication.
United States v. Crawford, No. 05-0266/MC

     Judge ERDMANN delivered the opinion of the court.

     Captain Thomas A. Crawford pled guilty to conspiracy to

commit larceny and wrongful disposition of military property and

explosives, wrongful sale of military property, larceny of

military property, wrongful transportation and sale of explosive

material knowing it to have been stolen, and wrongful

disposition of stolen ammunition in violation of Articles 81,

108, 121 and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 881, 908, 921, 934 (2000).    He was sentenced by

members to dismissal, confinement for thirty years, and

forfeiture of all pay and allowances.   The convening authority

approved the sentence but suspended confinement in excess of

twenty years.   The United States Navy-Marine Corps Court of

Criminal Appeals affirmed the lesser included offense of

attempting to conspire to commit larceny and wrongful

disposition of military property and explosives, and affirmed

the remaining findings and the sentence in an unpublished

decision.   United States v. Crawford, No. NMCCA 9901590 (N-M.

Ct. Crim. App. Oct. 28, 2004).

     We granted Crawford’s petition for grant of review on the

following issue:

            WHETHER APPELLANT SUFFERED ILLEGAL PRETRIAL
            CONFINEMENT IN VIOLATION OF ARTICLE 13,
            UNIFORM CODE OF MILITARY JUSTICE, WHEN HE
            WAS CONFINED AT THE BASE BRIG, MARINE CORPS
            BASE, CAMP LEJEUNE, NORTH CAROLINA, UNDER
            CONDITIONS MORE RIGOROUS THAN THOSE REQUIRED


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United States v. Crawford, No. 05-0266/MC

             TO ENSURE HIS PRESENCE AT TRIAL BETWEEN HIS
             ARREST ON 16 OCTOBER 1997 AND HIS SENTENCING
             HEARING ON 10 JUNE 1998.

        Article 13, UCMJ, 10 U.S.C. § 813 (2000), provides in part

that when an individual is placed in pretrial confinement, the

conditions of that confinement shall not be “more rigorous than

the circumstances require to ensure his presence” for trial.

Through a post-trial declaration, Crawford contends that he is

entitled to sentence relief because the conditions of his

pretrial confinement violated this prohibition.    We hold that

Crawford has failed to meet his burden of demonstrating a

violation of Article 13, UCMJ.



                              BACKGROUND

        Crawford was placed in pretrial confinement on October 16,

1997.    His arrest and confinement followed a lengthy joint

investigation by the Federal Bureau of Investigation (FBI) and

the Naval Criminal Investigative Service (NCIS) into the theft,

disposition and sale of military property -- explosives, guns,

grenades, and ammunition -- on the gun show circuit.    Crawford,

an explosive ordinance disposal officer, commenced his

involvement in this criminal enterprise in the fall of 1996 when

he agreed with a former co-worker to steal military property and

explosives and transfer or sell the property to other

individuals.    Unbeknownst to Crawford, his former co-worker was



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United States v. Crawford, No. 05-0266/MC

working in cooperation with the FBI and NCIS and facilitated the

transfer and sale of the stolen property to undercover agents.

Crawford’s active participation in the theft, wrongful disposal

and sale of military property was investigated for almost a year

before he was apprehended.

     Upon his entry into pretrial confinement Crawford was

placed in a holding/observation cell for one week and following

a magistrate’s hearing he was placed in “‘B’ row maximum

custody.”    Crawford remained in maximum custody until his trial

ended on June 10, 1998.

     At trial, Crawford moved for the military judge to order

his release from pretrial confinement.   In support of this

motion, Crawford presented evidence to show that he was not

dangerous and that he was not a flight risk, but he did not

argue that the conditions of his pretrial confinement were more

rigorous than necessary.   Additionally, in his written unsworn

statement and through defense counsel’s sentencing argument,

Crawford urged that the dimensions of his cell and his custody

in “special quarters” be considered in determining an

appropriate sentence, but he did not argue an Article 13, UCMJ,

violation.

     After trial, in his Rule for Courts-Martial (R.C.M.) 1105

clemency submission, Crawford sought confinement credit claiming

that the conditions of his pretrial confinement violated Article



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United States v. Crawford, No. 05-0266/MC

13, UCMJ.   Crawford supported this claim with his own

declaration setting forth the conditions of his pretrial

confinement.   Although this post-trial clemency submission

referenced Article 13, UCMJ, and made reference to the fact that

Article 13, UCMJ, prohibits “unduly onerous conditions of

pretrial restraint”, the crux of that complaint was that

Crawford was punished prior to trial, not that he was subjected

to conditions more rigorous than necessary to assure his

presence for trial.

     While Crawford raised the matter of pretrial punishment in

his initial brief before the Navy-Marine Corps Court of Criminal

Appeals, it was not until he submitted a Supplemental Assignment

of Error that he specifically alleged that the conditions of his

pretrial confinement were more rigorous than necessary to ensure

his presence at trial.   The Supplemental Assignment of Error was

filed at the Court of Criminal Appeals nine months after his

initial brief was filed before that court.   The Supplemental

Assignment of Error referenced a declaration by Crawford dated

April 6, 1999, in which he set forth the conditions of his

pretrial confinement.

     According to Crawford’s declaration, every cell he occupied

was eight feet by eight feet by ten feet in dimension and

furnished with a steel rack, single foam mattress, a combination

sink and toilet, a student desk, and a plywood lockerbox.     As



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United States v. Crawford, No. 05-0266/MC

stated above, Crawford was initially placed in an observation

cell for one week.   During this initial one-week period he was

stripped to his undershorts, checked by a guard every five

minutes, given only a booklet of brig rules to read and allowed

only a ten-minute cold water shower each day.   He could not exit

the cell without handcuffs and leg irons.    Crawford claims he

was required to sit on the mattress and not lay down during the

day, to stand whenever he was checked by the guards and to wrap

himself up in a blanket whenever an officer checked on him.

Crawford notes that he was not allowed phone calls until Sunday

evening the week of his arrest.

     After the magistrate’s hearing, Crawford was relocated but

remained in maximum custody.   He requested legal reference

materials, but none were provided because the brig did not

maintain law books in its library.    In his declaration Crawford

asserts that the heating system in the brig did not work

“[d]uring the winter of 1997-98” and that “the daily temperature

inside special quarters during this period was between 30-45

degrees.”   He also claims that during this period he was not

allowed to wear a field jacket in the brig and he was not

permitted to use a blanket before evening.   Crawford’s

declaration details some of his daily regimen, including a daily

shower to which he was taken in handcuffs.   He was not allowed

to lay down during the day and he was permitted only infrequent



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United States v. Crawford, No. 05-0266/MC

“sunshine calls” of about ten minutes for exercise.    His

declaration states that he was not permitted to see the social

worker or take part in groups and his requests to see a chaplain

and to get assistance with family and pay matters were “pushed

aside.”    Crawford claims that he was subject to different rules

regarding mail and phone calls because he was “a special case.”

        Crawford states he was handcuffed and in leg irons any time

he left his cell which included work details and that he was

required to sweep, mop and polish more than other prisoners.    He

asserts he was required to scrape lead-based paint without

adequate ventilation or protection and that he was not permitted

to wash prior to eating.    He claims he was not allowed to have

private unmonitored visits with his attorney and he was not

allowed to visit his attorney’s office until late February 1998.

        The Navy-Marine Corps court found that Crawford “ha[d] not

demonstrated . . . that the conditions were more rigorous than

necessary to ensure his presence at court.”    Crawford, slip op.

at 5.



                              DISCUSSION

        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 require to insure his presence, but he may be
        subjected to minor punishment during that period for
        infractions of discipline.


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United States v. Crawford, No. 05-0266/MC


Thus, Article 13, UCMJ, prohibits:   (1) intentional imposition

of punishment on an accused before his or her guilt is

established at trial; and (2) arrest or pretrial confinement

conditions that are more rigorous than necessary to ensure the

accused’s presence at trial.   United States v. King, 61 M.J.

225, 227 (C.A.A.F. 2005); United States v. Inong, 58 M.J. 460,

463 (C.A.A.F. 2003); United States v. Fricke, 53 M.J. 149, 154

(C.A.A.F. 2000).   The question whether Crawford is entitled to

credit for a violation of Article 13, UCMJ, is a mixed question

of fact and law.   United States v. Smith, 53 M.J. 168, 170

(C.A.A.F. 2000); United States v. McCarthy, 47 M.J. 162, 165

(C.A.A.F. 1997).   Whether the facts amount to a violation of

Article 13, UCMJ, is a matter of law the court reviews de novo.

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

     At the outset we agree with Crawford that his failure to

raise this particular claim at trial did not constitute waiver.

Crawford’s case was tried well before our decision in Inong, 58

M.J. at 465, in which we held prospectively that failure to

raise an Article 13, UCMJ, violation at trial waives appellate

consideration of that issue in the absence of plain error.

Crawford’s case was also tried before our decisions in United

States v. Tanksley, 54 M.J. 169, 177-78 (C.A.A.F. 2000), and

United States v. Southwick, 53 M.J. 412, 416 (C.A.A.F. 2000),

applying a “tantamount to affirmative waiver” rule when an


                                 8
United States v. Crawford, No. 05-0266/MC

accused did not assert an Article 13, UCMJ, claim at trial, but

instead argued the conditions of his pretrial restraint as a

factor to mitigate the sentence.       Thus, we do not apply waiver

in this case.   Instead we will proceed to the merits of

Crawford’s claim.   See United States v. Huffman, 40 M.J. 225,

227 (C.M.A. 1994) (reflecting the law at the time of Crawford’s

trial that “we will not invoke waiver [of alleged Article 13,

UCMJ, violations] unless there is an affirmative, fully

developed waiver on the record.”), overruled by Inong, 58 M.J.

at 463-64.1

     The burden rests upon Crawford to establish a violation of

Article 13, UCMJ.   Mosby, 56 M.J. at 310.      If he does so then

R.C.M. 305(k) provides him “additional credit for each day of

pretrial confinement that involves an abuse of discretion or

unusually harsh circumstances.”    See Inong, 58 M.J. at 463;

United States v. Spaustat, 57 M.J. 256, 261 (C.A.A.F. 2002);

United States v. Suzuki, 14 M.J. 491, 493 (C.M.A. 1983).

Because the conditions of Crawford’s confinement relate to both

ensuring his presence for trial and the security needs of the

confinement facility, and because we are reluctant to second-

1
  Crawford also argues that the Court of Criminal Appeals
erroneously applied this court’s decision in United States v.
Inong, 58 M.J. 460, 465 (C.A.A.F. 2003) (establishing a
prospective rule of waiver if an Article 13, UCMJ, claim is not
raised at trial), to his case. We disagree. Our review of the
lower court’s decision convinces us that the citations to Inong



                                   9
United States v. Crawford, No. 05-0266/MC

guess the security determinations of confinement officials,

Crawford bears the burden of showing that the conditions were

unreasonable or arbitrary in relation to both purposes.   See

King, 61 M.J. at 228; Mosby, 56 M.J. at 310; see also Bell v.

Wolfish, 441 U.S. 520, 540 n.23 (1979) (noting that “maintaining

security and order and operating the institution in a manageable

fashion . . . ‘are peculiarly within the province and

professional expertise of corrections officials, and, in the

absence of substantial evidence in the record to indicate that

the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert

judgment in such matters.’” (quoting Pell v. Procunier, 417 U.S.

817, 827 (1974)) (emphasis added).

     We have no findings of fact against which to consider or

assess Crawford’s claims that the conditions of his pretrial

confinement were more rigorous than necessary.   In dealing with

post-trial, extra-record assertions of fact such as those in

Crawford’s declaration, we look to the principles of United

States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), to determine

whether we can resolve the issue without further factfinding

proceedings.   In this case, we note that if an “affidavit is

factually adequate on its face but the appellate filings and the

record as a whole ‘compellingly demonstrate’ the improbability


were appropriate references to principles of Article 13, UCMJ,


                                10
United States v. Crawford, No. 05-0266/MC

of those facts, the Court may discount those factual assertions

and decide the legal issue.”    Id.   Although this record does not

wholly refute each aspect of Crawford’s post-trial declaration,

it does contain relevant evidence which we find appropriate to

consider in resolving Crawford’s claim.

     The record contains some evidence of the conditions

Crawford experienced in pretrial confinement.    Crawford’s

unsworn statement offered on sentencing referred to the fact

that he had been kept in “an 8 x 8 cell at the brig for the last

9 months since [his] arrest.”   His wife indicated that during

the first six days of confinement, Crawford was “on a blanket in

his underwear in his cell with no contact with us. . . .”

Crawford’s son visited him for portions of an entire week,

regularly on the weekends, and often during the week.    His

daughter visited him “just about every weekend” after the first

three months, and she would often bring Crawford’s grandson to

visit him.   A “Brig Progress Report” dated June 4, 1998,

reflects “outstanding conduct,” participation in group religious

and counseling sessions, and that Crawford remained optimistic.

The report assessed Crawford’s attitude and behavior in

confinement as “positive.”

     In addition, the record pertaining to the decision to

confine Crawford prior to trial and the military judge’s



jurisprudence and not application of a rule of waiver.

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United States v. Crawford, No. 05-0266/MC

decision to retain Crawford in pretrial confinement are

significant to this issue.   The magistrate considered Crawford’s

comments about blowing up buildings on Camp Lejeune, his alleged

threats to his wife, Crawford’s willingness to instruct persons

he believed to be members of organized crime in how to use the

explosives Crawford sold, and the fact that investigators were

not certain all the explosives stolen by Crawford had been

recovered.   Crawford made a number of statements to undercover

agents, including Special Agent (SA) Truesdale of the NCIS, who

had introduced himself to Crawford as a member of organized

crime.   Crawford made an offer to SA Truesdale to train people

to handle explosives and build bombs.   Agent Truesdale indicated

that Crawford knew that Truesdale was creating a cache of

weapons for potential use against the United States Government.

Crawford discussed his ability to make bombs and a radiation

dispersing device as well as where he would place bombs on the

military installation and how to blow up the Chesapeake Tunnel.

Crawford described to SA Truesdale in graphic detail how he

would kill his ex-wife.

     These matters of record support two conclusions.     First,

the record contradicts Crawford’s claims about visitation and

group participation.   The record indicates he had numerous

visits from his family and participated in group religious and

counseling sessions.   Crawford’s broad claims of isolation and



                                12
United States v. Crawford, No. 05-0266/MC

exclusion from confinement facility activities are discredited.

Second, there is a sound basis in the record for the conclusion

that Crawford presented a high risk of future serious misconduct

including mass violence and physical harm to others.   Balancing

these record matters against Crawford’s post-trial declaration,

and taking the unrefuted portions of that declaration as true,

we hold that Crawford has not met his burden of demonstrating a

violation of Article 13, UCMJ.

     We agree with both the military magistrate and the military

judge that pretrial confinement was appropriate for Crawford.

Neither erred in determining that Crawford was both a flight

risk and a serious risk for future misconduct.   Furthermore,

Crawford appeared to have had access to money from his weapons

sales as well as other weapons and explosives.   Thus he

presented a special security concern for confinement facility

officials and, from the outset, Crawford warranted heightened

scrutiny.

     While the conditions of his pretrial confinement were

stark, Crawford has presented nothing in his declaration to

refute the very strong indication that his was a unique case

requiring special security considerations.   “‘Once the

Government has exercised its conceded authority to detain a

person pending trial, it obviously is entitled to employ devices

that are calculated to effectuate this detention’” provided such



                                 13
United States v. Crawford, No. 05-0266/MC

devices are reasonable under the circumstances and

constitutional.   United States v. Palmiter, 20 M.J. 90, 99

(C.M.A. 1985) (Everett, J., concurring in the result) (quoting

Bell, 441 U.S. at 537); see also McCarthy, 47 M.J. at 168

(“subsequent good behavior does not serve to revise the facts as

they existed and were known to brig authorities at the time of

classification”).   Moreover, Crawford’s failure to complain

prior to his appeal to the Court of Criminal Appeals is “strong

evidence” that Article 13, UCMJ, was not violated.   See Huffman,

40 M.J. at 227; Palmiter, 20 M.J. at 97.

     We have carefully weighed the fact that Crawford was

segregated for a week of observation2 then retained as a “maximum

custody” prisoner for almost nine months, the entire time he was

in pretrial confinement.   By virtue of our decision in this case

we do not wish to convey the impression that we condone

arbitrary policies imposing “maximum custody” upon pretrial

prisoners.3   We will scrutinize closely any claim that maximum



2
  The segregated “evaluation, classification, and examination of
newly received prisoners about whom the correctional and medical
staff know little or nothing” is “necessary” and “related to a
rational custodial purpose.” United States v. Palmiter, 20 M.J.
90, 92 n.2 (C.M.A. 1992).
3
  Maximum custody has the following characteristics: (1)
immediate and continuous supervision; (2) no work details
outside the cell; (3) assignment to the most secure quarters;
(4) two or more escorts whenever the prisoner is outside his
cell; (5) restraints whenever outside the maximum security area;
and (6) additional restraints for movement where authorized by

                                14
United States v. Crawford, No. 05-0266/MC

custody was imposed solely because of the charges rather than as

a result of a reasonable evaluation of all the facts and

circumstances of a case.    Where we find that maximum custody was

arbitrary and unnecessary to ensure an accused’s presence for

trial, or unrelated to the security needs of the institution, we

will consider appropriate credit or other relief to remedy this

type of violation of Article 13, UCMJ.    See Palmiter, 20 M.J. at

99 (Everett, J., concurring in the result) (quoting Bell, 441

U.S. at 538-39) (indicating that arbitrary conditions may be

inferred to constitute punishment).

      Here, however, the serious charges against Crawford, the

potential for lengthy confinement, Crawford’s threats and his

apparent ability to execute those threats, his access to unknown

quantities of weapons and explosives, and his professed

willingness to resort to violent means against what he viewed as

Government oppression provide sufficient reason to classify

Crawford as a high-risk inmate.    See McCarthy, 47 M.J. at 166-

67.   “Prison administrators . . . should be accorded wide-

ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal

order and discipline and to maintain institutional security.”

Bell, 441 U.S. at 547.     We will not second-guess the security

determinations of confinement officials under these


the commanding officer of the brig.    Dep’t of the Navy, Instr.


                                  15
United States v. Crawford, No. 05-0266/MC

circumstances.   See Palmiter, 20 M.J. at 100 n.2 (Everett, J.,

concurring in the result) (quoting Bell, 441 U.S. at 547-48,

quoting Pell, 417 U.S. at 827).4     Moreover, Crawford has not

provided specific allegations that he was treated differently

from other maximum security prisoners.

     In other respects, Crawford has failed to present the

substantial evidence necessary to support his Article 13, UCMJ,

claim.   For example, while subjection to cold temperatures could

amount to an Article 13, UCMJ, violation, Crawford has made only

a broad generalized allegation of exposure to cold temperatures

“[d]uring the winter of 1997-98.”     Climatological data offered

by Crawford’s appellate defense counsel does not support a claim

of persistent near or below freezing temperatures outside the

brig much less inside special quarters for the entire winter.

Further, Crawford provides no details that would enable us to

ascertain whether he called attention to the problem, whether

brig officials responded to any complaints or took independent

corrective steps, whether the problem was persistent or

intermittent, or whether prison officials were at all

responsible or abusive with respect to the matter of temperature

within special quarters.


1640.9B, Corrections Manual para. 4201.2.a. (Dec. 2, 1996).
4
  See also Palmiter, 20 M.J. at 96 (“Under no circumstance should
the prisoner be the one to dictate the terms and conditions of



                                16
United States v. Crawford, No. 05-0266/MC

        Crawford’s allegations about lead-based paint are also

inadequate to show an Article 13, UCMJ, violation.      His

declaration asserts that he scraped lead-based paint without

adequate ventilation or protection.       Crawford provides no

specific facts upon which we can ascertain the extent of this

problem or whether it was an abusive activity.      To the contrary,

Crawford reveals in his declaration that there was testing

conducted after he raised the matter and that he was later

informed it was “all right.”

        For the foregoing reasons we conclude that Crawford has

failed to sustain his burden of establishing entitlement to

additional sentencing credit for a violation of Article 13,

UCMJ.



                               DECISION

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




his confinement. This should always be left up to the
correctional facility commanders and the respective services.”).

                                  17
