United States v. Crawford , 2006 CAAF LEXIS 251 ( 2006 )

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the remaining findings and the sentence in an unpublished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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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
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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
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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,
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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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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
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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
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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
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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.
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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
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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