Lead Opinion
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.
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 dоrmitory 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 would have been available had that restriction been tantamount to confinement. See United States v. Mason,
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 а 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 supervising 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 gо elsewhere. I once asked to go to the commissary; 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 exceptions again (including to go to the base exchangе, 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 mеrit” to applying waiver, it felt “constrained” not to apply waiver because of this Court’s decisions in United States v. Huffman,
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,
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,
DISCUSSION
Appellant’s Case
In United States v. Allen,
We review de novo the ultimate legal question of whether certain pretrial restrictions are tantamount to confinement. See United States v. Guerrero,
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,
the nature of the restraint (physical or moral), the area оr 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 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).
Smith,
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 chаpel, 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.
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,”
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 wаs 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, 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,
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 еqually 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,
Of course, we recognize that a Court of Criminal Appeals has the unique power to determine for itself, from the existing 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,
This Court already has applied waiver to the issue of sentence credit flowing from restriction tantamount to confinement. In United States v. Chapa,
Before this Court, Chapa argued he was entitled to additional day-for-day credit, asserting that his commander had not compliеd
Consequently, for all the reasons in support of waiver, we now hold that once this opinion becomes final, fаilure 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.
CONCLUSION
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
Notes
. See Article 66(b), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 866(b)(2002).
. 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.
. 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,
. 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,
. 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.
Concurrence Opinion
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,
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,
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,
The Court of Criminal Appeals itself, misread Rock, and misconstrued the manner of credit calculation. In Rock,
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, ac*116 tually or constructively, the credit applies against the agreement, otherwise the accusеd’s sentence will exceed the maximum lawful limit.
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 apрellant 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 аdjudged sentence or the sentence that may be approved under the pretrial agreement.
Spaustat,
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 Criminаl 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 as a comрarative matter, or in general, see e.g., United States v. Campbell,
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 tо confinement, he should have his claim to credit adjudicated 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 negаtive, 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.
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. Scalarone,