TRIAL STAGES: Pretrial: Pretrial Confinement

2013 (September Term)

United States v. Danylo, 73 M.J. 183 (pretrial confinement which exceeds an adjudged sentence is not per se prejudicial).   



United States v. Regan, 62 M.J. 299 (the procedural protections or the credit provided by RCM 305 in connection with pretrial confinement apply to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement; to come within the scope of RCM 305, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his freedom; thus, restriction tantamount to confinement does not necessarily trigger the application of RCM 305).


United States v. Crawford, 62 M.J. 411 (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).

(if an accused establishes a violation of Article 13, UCMJ, then RCM 305(k) provides him additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances). 

(in this case, the matters of record support two conclusions; first, the record contradicts the accused’s claims about lack of visitation and ability to participate in group activities; the record indicates he had numerous visits from his family and participated in group religious and counseling sessions; in addition, the accused’s broad claims of isolation and exclusion from confinement facility activities are discredited; second, there is a sound basis in the record for the conclusion that the accused presented a high risk of future serious misconduct including mass violence and physical harm to others; balancing these record matters against the accused’s post-trial declaration, and taking the unrefuted portions of that declaration as true, this Court holds that the accused has not met his burden of demonstrating a violation of Article 13, UCMJ).

(the accused appeared to have had access to money as well as weapons and explosives; thus, he presented a special security concern for confinement facility officials and, from the outset, the accused warranted heightened scrutiny; while the conditions of his pretrial confinement were stark, the accused 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 devices are reasonable under the circumstances and constitutional; moreover, the accused’s failure to complain prior to his appeal to the Court of Criminal Appeals is strong evidence that Article 13, UCMJ, was not violated). 

(arbitrary policies imposing maximum custody upon pretrial prisoners are not condoned; an appellate court will scrutinize closely any claim that maximum 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 an appellate court finds that maximum custody was arbitrary and unnecessary to ensure an accused’s presence for trial, or unrelated to the security needs of the institution, it will consider appropriate credit or other relief to remedy this type of violation of Article 13, UCMJ).

(in this case, the serious charges against the accused, the potential for lengthy confinement, the accused’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 him as a high-risk inmate; 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; an appellate court will not second-guess the security determinations of confinement officials under these circumstances; moreover, the accused has not provided specific allegations that he was treated differently from other maximum security prisoners).

(where an accused has failed to present the substantial evidence necessary to support his Article 13, UCMJ, claim, he has failed to sustain his burden of establishing entitlement to additional sentencing credit for a violation of Article 13, UCMJ). 


United States v. King, 58 M.J. 110 (the determination whether the conditions of restriction are tantamount to confinement must be based on the totality of the conditions imposed.).

(factors to be considered in determining whether pretrial restriction is tantamount to confinement 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.); the degree of privacy enjoyed within the area of restraint; whether the accused was required to sign in periodically with some supervising authority; whether a charge of quarters or other authority 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 accommodations; and whether the accused was allowed to retain and use his personal property (including his civilian clothing)).

United States v. Wardle, 58 MJ 156 (where the facts reveal that appellant was a flight risk and that less severe forms of restraint were inadequate, pretrial confinement was authorized under R.C.M. 305).

(the Court need not reach the issue of whether suicide risk in this case, or under other circumstances, would warrant pretrial confinement; in light of the other factors in the record, including the amount of money appellant had taken and his failure to report to duty (which was only later followed by an attempted suicide with an undetermined predicate), appellant established himself as a flight risk within the meaning of R.C.M. 305).

United States v. Inong, 58 MJ 460 (Article 13 prohibits two things: (1) the intentional imposition of punishment on an accused before his or her guilt is established at trial, i.e., illegal pretrial punishment, and (2) arrest or pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement; if an accused, or appellant, can demonstrate that either existed, he or she is entitled to sentence relief).

(in United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we will not invoke waiver of alleged Article 13 violations unless there is an affirmative, fully developed waiver on the record; today, however, the Court concludes Huffman’s affirmative waiver rule is unworkable; as a result, the Court now overrules Huffman and begins followings the "raise or waive" rule required by the Manual for Courts-Martial, United States, as relates to assertions of illegal pretrial confinement and punishment; in so doing, the Court also overrules United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), to the extent they establish a "tantamount to affirmative waiver" rule in the Article 13 arena; the Court therefore holds that once this opinion becomes final, failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error; having said that, however, the Court urges all military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that they should).


United States v. Smith, 56 MJ 290 (pretrial confinement, imposed and administered in a lawful manner, is not per se cruel or unusual punishment under either Article 55 or the Eighth Amendment, and no constitutional violation arises from failure to give credit for pretrial detention unless there is a violation of the Equal Protection Clause of the Fifth Amendment).

(as written, 18 USC § 3585(b) and DODI 1325.7 apply only to prisoners serving sentences to adjudged confinement; the decision whether to extend DODI 1325.7 or RCM 305 to give pretrial confinement credit to persons not sentenced to confinement is a matter of Executive prerogative, and, to date, neither the President nor the Secretary of Defense has exercised that prerogative).

United States v. Chapa, 57 MJ 140 (the defense bears the burden of raising an issue of compliance with any of the procedures addressed in RCM 305 by making a motion that specifically focuses the attention of trial participants on the alleged shortcoming).

(any issue regarding failure to conduct the 48-hour review of pretrial confinement is waived by failure to specifically raise the issue at trial, and an asserted violation of one provision of RCM 305 is not sufficient to preserve the issue whether another provision was violated).

(any issue founded on noncompliance with RCM 305 was waived where: (1) appellant did not assert that his restriction was tantamount to confinement, nor did he assert any violations of RCM 305; (2) the defense request for relief focused solely on Article 13; (3) defense counsel’s question about the commander’s review of his decision to seize appellant’s personal property was insufficient to raise and preserve the issue because it addressed only the seizure of appellant’s property and not the restraints on his liberty, and because it was too general to alert the military judge or the Government to a complaint that formal review processes were not followed; (4) defense counsel had the opportunity to ask the commander whether the conditions on appellant’s liberty were reviewed in accordance with RCM 305(h) and (i), or to present other evidence of noncompliance, but he did not avail himself of that opportunity).

(because appellant did not establish a factual predicate for his asserted violation of RCM 305, he has not overcome the waiver provisions of RCM 905(e) by demonstrating plain error).


United States v. Scalarone
, 54 MJ 114 (failure to request sentence credit for unlawful pretrial punishment or illegal pretrial confinement at trial does not forfeit such a claim in the absence of plain error or waive such a claim forever).

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