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 

2

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the remaining findings and the sentence in an unpublished 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 
United States v. Crawford, No. 05-0266/MC 

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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.”).