U.S. v. King, 58 M.J. 110

Trial Stages: Pretrial: Pretrial Confinement

1. the determination whether the conditions of restriction are tantamount to confinement must be based on the totality of the conditions imposed.
2. 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)

Trial Stages: Sentence and Punishment: Credits

1. the determination whether the conditions of restriction are tantamount to confinement must be based on the totality of the conditions imposed.
2. 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)
3. pretrial restriction of accused was not tantamount to confinement, and thus accused was not entitled to any Mason credit against his sentence to confinement, considering the nature of the restriction and the fact that he did not argue at trial that it was tantamount to confinement; accused was restricted from all base facilities with the exception of his dormitory residence and any facility required to assist his defense counsel with pretrial preparation, but he could visit other locations on base with the permission of his commander or first sergeant

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. CAAF reviews de novo the ultimate legal question of whether certain pretrial restrictions are tantamount to confinement

Trial Stages: Appeals: Waiver

1. 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; 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.
2. once this opinion becomes final, failure 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.