U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700108
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellee
                                     v.
                         KEVIN J. DELANEY
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Lieutenant Colonel Leon J. Francis, USMC.
  Convening Authority: Commanding General 3d Marine Division
                    (-)(Rein), Okinawa, Japan.
  Staff Judge Advocate’s Recommendation: Colonel T roy S. Taylor,
                              USMCR.
     For Appellant: Captain Kimberly D. Hinson, JAGC, USN.
    For Appellee: Major Kelli A. O’Neil, USMC; Captain Brian L.
                          Farrell, USMC.
                      _________________________

                        Decided 17 October 2017
                        _________________________

  Before M ARKS , J ONES , and W OODARD , Appellate Military Judges
                       _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                      _________________________

   WOODARD, Judge:
    At a general court-martial a military judge convicted the appellant,
pursuant to his pleas, of one specification each of making a false official
statement, wrongfully using a Schedule I controlled substance, viewing child
pornography, and obstructing justice, in violation of Articles 107, 112a, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a, and
934 (2012). The military judge sentenced the appellant to reduction to pay
                   United States v. Delaney, No. 201700108


grade E-1, forfeiture of all pay and allowances, 13 months’ confinement, and
a bad-conduct discharge. Pursuant to a pretrial agreement, the convening
authority (CA) approved only so much of the sentence which provided for
reduction to pay grade E-1, total forfeitures, confinement for 12 months, and
a bad-conduct discharge. He then ordered the sentence, except for the
discharge, executed.
   The appellant asserts two assignments of error (AOEs): (1) that the
conditions of his pretrial restriction were tantamount to confinement thus
entitling him to day-for-day credit in accordance with United States v. Mason,

(C.M.A. 1985) (summary disposition); and (2) the military judge
committed plain error when he did not address the requirements and remedy
of RULE FOR COURTS-MARTIAL (R.C.M.) 305(k), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.). After carefully considering the
pleadings and the record of trial, we find no error materially prejudicial to
the substantial rights of the appellant and affirm the findings and sentence.
Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
    The appellant was involved in online sexual relationships with two
teenage girls, both of whom were at least 16 years old. During the course of
the relationships, the girls electronically sent explicit photographs and videos
of themselves to the appellant, and the appellant captured screen shots of the
girls’ exposed genitalia during their online interactions. After being
interviewed by the Naval Criminal Investigative Service (NCIS), the
appellant contacted one of the girls and told her to delete everything on her
phone about him to prevent NCIS from finding it.
    Charges stemming from the appellant’s interactions with the girls and his
statement to NCIS were preferred on 13 October 2016. The following month,
on 28 November 2016, an additional charge of violating Article 112a, UCMJ,
was preferred against the appellant.
    Between the dates of the two preferrals, on 14 November 2016, the
appellant was placed on pretrial restriction. On 8 December 2016, following a
telephonic conversation with the appellant’s trial defense counsel (TDC), the
appellant’s command issued him a new pretrial restriction order which
lessened the conditions of his pretrial restriction. The appellant remained on
pretrial restriction until he was sentenced on 18 January 2017.
                               II. DISCUSSION
    The appellant now argues, for the first time on appeal, that his pretrial
restriction was tantamount to confinement and that he is entitled to Mason
credit. “We review de novo the ultimate legal question of whether certain
pretrial restrictions are tantamount to confinement.” United States v. King,

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, 113 (C.A.A.F. 2003) (citations omitted). “However, failure at trial
to seek Mason credit for pretrial restriction tantamount to confinement will
constitute forfeiture in the absence of plain error.” United States v. Parker, 

, 611 (N-M. Ct. Crim. App. 2016) (citation omitted).
   At trial, the military judge specifically asked the TDC whether the
appellant had been subjected to any form of illegal pretrial punishment. The
TDC informed the military judge that he did not believe the conditions of
appellant’s pretrial restriction rose to the level of illegal pretrial punishment,
but he would offer both of the appellant’s restriction orders for the court’s
consideration as mitigation evidence. He further described the conditions of
the initial restriction order as “similar to what’s given out at NJP”1 and the
subsequent order as “less onerous[.]”2 The military judge acknowledged that
he would consider the conditions of the appellant’s pretrial restriction in his
sentencing deliberations. Immediately following this exchange, the military
judge asked the TDC if the appellant had ever been in pretrial confinement,
and the TDC responded in the negative, without further mention of the
conditions of the appellant’s pretrial restriction. Later in the trial, the
appellant’s restriction papers were admitted into evidence as a defense
exhibit,3 and in his sentencing argument, the TDC argued the conditions of
the appellant’s restriction as a matter in mitigation.
    At trial, the appellant neither objected to the conditions of his pretrial
restriction nor did he seek Mason credit. Therefore, we review for plain error.

.
    ‘“Under a plain error analysis, the accused has the burden of
demonstrating that: (1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the
accused.”’ United States v. Davis, 

, 230 (C.A.A.F. 2017) (quoting
United States v. Payne, 

, 23 (C.A.A.F. 2014)). “[T]he failure to
establish any one of the prongs is fatal to a plain error claim.” United States
v. Bungert, 

, 348 (C.A.A.F. 2006).
   Conditions of pretrial restriction more rigorous than necessary to ensure
the presence of an accused at trial or to prevent additional misconduct may
be found to be tantamount to confinement—thus entitling an appellant to
day-for-day credit for time that he or she spends in pretrial restriction
tantamount to confinement. 

.



   1   Record at 72-73.
   2   

   3   

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   In deciding whether the conditions of the appellant’s pretrial restriction
were tantamount to confinement, we consider the totality of the conditions
imposed, including “prior examples of such cases . . . and the factors gleaned
from them[.]” 

(citation and internal quotation marks
omitted). These factors include:
       [T]he 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.), 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).

Additionally, when an appellant fails to complain of
the conditions of his pretrial restriction at the time of trial, as appellant has
here, that is “strong evidence” that “the restriction was, in fact, not the same
as confinement.” 

(citations omitted). In general, analysis of the
foregoing factors will reveal “levels of restraint . . . which fall somewhere on a
spectrum that ranges from ‘restriction’ to ‘confinement.’ If the level of
restraint falls so close to the ‘confinement’ end of the spectrum as to be
tantamount thereto, [an] appellant is entitled to appropriate and meaningful
administrative credit against his sentence.” United States v. Smith, 

, 531 (A.C.M.R. 1985).
    In the case before us, the appellant received two restriction orders. The
first order, dated 14 November 2016, contained the following provisions:
          the officer imposing the restriction has the sole authority to
           make modifications to the restriction order;
          restriction to his place of duty, worship, mess, billeting, and
           areas required to carry out his duties;
          during liberty periods regular musters in uniform of the day
           with the officer of the day (OOD) four times per workday


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                     United States v. Delaney, No. 201700108


             (0700, 1800, 2000, and 2145) and every two hours between
             0700 and 1500 then at 1800, 2000, and 2145 on weekends
             and holidays;
            if attending religious services or Alcoholics Anonymous
             meetings, check out with OOD before leaving and upon
             return;
            no purchase or consumption of alcohol, attendance at any
             recreational movie, or service club;
            no riding or driving of a privately-owned vehicle;
            no wearing of civilian attire and must remain in the
             uniform of the day unless otherwise authorized or during
             sleep hours;
            no physical training attire unless conducting unit physical
             training;
            no use of public phones unless otherwise authorized;
            no use of the Marine Corps Exchange unless otherwise
             authorized; and
            no visitors allowed in his barracks room.4
In his post-trial declaration, the appellant avers that, although not stated in
the order, the following additional pretrial restriction provisions applied:
            he was reassigned to routine administrative functions such
             as helping in the supply department, motor pool, trash
             removal, or other assignments from various departments
             within his unit as assigned by the duty;
            if not going to or coming from his assigned duty location, or
             properly checked-out and escorted by a noncommissioned
             officer (NCO), he was required to be in his barracks room;
            he was subject to room checks, day and night, to ensure his
             presence and that he did not possess any alcohol; and
            he was allowed to smoke, but only at the smoke pit which
             was within sight of the duty.5
Even assuming these additional conditions were in effect, the appellant
retained or was not specifically limited from:

   4   Defense Exhibit (DE) C at 2.
   5 Appellant’s Motion to Attach Appellant’s Declaration of 9 Jun 2017, Appellant’s
Declaration (Appellant’s Declaration) at 2.

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            remaining in his previously assigned barracks room;
            retaining all personal items;
            use of any personal electronic devices within his barracks
             room;
            attending Alcoholics Anonymous meetings;
            attending worship services;
            traveling unescorted to his assigned work section;
            wearing civilian clothes upon request and approval;
            use of public phones upon request and approval;
            use of MCX upon request and approval; and
            smoking in a designated outside area.
The second order, dated 8 December 2016, reduced the restriction to only the
following conditions:
            prohibited off-base liberty;
            prohibited purchase or consumption of alcohol;
            permitted on-base liberty, but the appellant was required to
             log out/in with the OOD via phone call prior to and upon
             return to assigned quarters;
            prohibited visitors in his barracks room.6
         A service member suspected of an offense may be subjected to pretrial
restraint pending court-martial, including restriction, arrest, or confinement.
R.C.M. 304(a). Conditions may be ordered if they are “reasonably necessary
to protect the morale, welfare, and safety of the unit (or the accused); to
protect victims or potential witnesses; or to ensure the accused’s presence at
the court-martial or pretrial hearings.” United States v. Blye, 

, 94
(C.M.A. 1993) (holding order not to drink alcohol while on restriction was
lawful).
    After considering the conditions placed upon the appellant by his pretrial
restriction orders, the additional conditions he now alleges were imposed
upon him, and the appellant’s failure to complain at trial, we find his pretrial
restriction was not tantamount to confinement—and thus not error.
   The timing of the imposition of the appellant’s restriction is significant.
Prior to his positive urinalysis, although the appellant had been under
investigation for nearly a year, he was not subject to any form of restraint. It

   6   DE C at 3-4.

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                       United States v. Delaney, No. 201700108


was not until after he committed additional misconduct, as evidenced by his
positive urinalysis, that he was placed on pretrial restriction by his
command. The appellant’s restriction was tailored, not only to ensure his
presence at trial on serious charges, but also to protect the morale, welfare,
and safety of both him and his unit. The appellant’s drug abuse occurred
during a night of excessive alcohol consumption where he drank to the point
that he “blacked out.”7 And, when placed on pretrial restriction, the
appellant’s company commander informed him that he “was being placed on
restriction ‘to keep [the appellant] safe.’”8 The conditions imposed by the
appellant’s command which limited his access to alcohol and the
establishments which served it, as well as the room inspections and escorts,
were reasonable restraints considering the circumstances of the appellant’s
alleged substance abuse misconduct, and not punishment as prohibited by
R.C.M. 304(f).
    Additionally, the appellant’s circumstances were less restrictive than
those that prompted the Mason court to extend confinement credit to pretrial
restriction—restriction to a dayroom with permission to go, under escort, only
to the latrine, chapel, mess hall, half-hourly musters, and exclusion from
training. 

. Unlike in Mason, the appellant was allowed
to remain in his barracks room with all of his personal belongings, allowed to
travel unescorted to his assigned duty locations, not required to muster
during the work day and only every two hours during non-duty hours and on
non-duty days, and, although under escort, allowed to use the MCX and
attend Alcoholics Anonymous meetings.
    Finally, the appellant failed to complain at trial that the conditions of his
pretrial restriction were tantamount to confinement. Accordingly, we find his
conditions were closer on the spectrum to restriction than confinement. See

(holding that restriction to dormitory, dining facility,
squadron building, and defense counsel’s office; reassignment to cleaning and
manual labor duties; requirement to muster twice per day; and inability to
use the gym was not tantamount to confinement); United States v. Guerrero,

, 224-25 (C.M.A. 1989) (holding that restriction to barracks room,
latrine, chapel, mess hall and other places of duty; requirement for an NCO
escort; and requirement to muster “every 30 minutes until normal ‘lights out”
was not tantamount to confinement); 

(holding
restriction to base with permission to visit exchange, gym, on-base food
establishments, and other base facilities with an escort; requirement to
muster every two hours during the day; prohibition against receiving visitors,


   7   Record at 50.
   8   Appellant’s Declaration at 1.

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                  United States v. Delaney, No. 201700108


and reassignment to routine administrative functions was not tantamount to
confinement); United States v. Patterson, 201600189, 2017 CCA LEXIS 437 at
*23-25 (N-M. Ct. Crim. App. 30 Jun 2017) (holding restriction to barracks
room, work area, base chapel, infirmary, mess hall, 21 Area Exchange,
barbershop, dry cleaners, and fitness center; requirement to muster four
times per workday and every two hours between 0700 and 1500 then at 1800,
2000, and 2145 on weekends and holidays; requirement of an NCO escort and
notification to barracks duty when leaving the barracks; prohibition on the
use of alcohol; prohibition on the use of recreational activity centers or
participating in intramural sports; prohibition on the operation of a privately
owned vehicle; and prohibition against receiving visitors was not tantamount
to confinement); Washington v. Greenwald, 

(A.C.M.R. 1985)
(holding restriction to company area, dining hall, place of duty, and
chaplain’s office during the day and his room at night; requirement to muster
every hour when not at work; and requirement of an escort to travel
anywhere after duty hours was not tantamount to confinement).
    The appellant has failed to meet his burden under the first prong of the
plain error test—that there was error. Specifically, we find that the
conditions of his pretrial restriction were not tantamount to confinement. No
error, let alone plain or obvious error, occurred.
    Our conclusion that the appellant’s restriction was not tantamount to
confinement renders his second AOE moot. See United States v. Rendon, 

, 224-25 (C.A.A.F. 2003) (holding that R.C.M. 305 applies only when:
(1) the conditions of an appellant’s pretrial restriction are such that they
constitute restriction tantamount to confinement; and (2) the “conditions or
circumstances of that restriction constitute physical restraint, the essential
characteristic of confinement”).
                              III. CONCLUSION
   The findings and the sentence as approved by the CA are affirmed.
   Senior Judge MARKS and Judge JONES concur.
                               For the Court




                                R.H. TROIDL
                                Clerk of Court




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