IN THE CASE OF
UNITED STATES, Appellee
v.
Edgar E. CORTEGUERA, JR., Airman
U.S. Air Force, Appellant
No. 01-0421
Crim. App. No. 33067
United States Court of Appeals for the Armed Forces
Argued October 24, 2001
Decided February 26, 2002
SULLIVAN, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Jennifer K. Martwick (argued); Lieutenant
Colonel Beverly B. Knott, Lieutenant Colonel Timothy W.
Murphy, and Major Maria A. Fried (on brief); Colonel James R.
Wise and Major Stephen P. Kelly.
For Appellee: Captain Matthew J. Mulbarger (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief);
Major Linette I. Romer.
Military Judge: Amy M. Bechtold
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Corteguera, Jr., 01-0421/AF
Senior Judge SULLIVAN delivered the opinion of the Court.
On August 21, 1997, appellant was tried by a general court-
martial composed of a military judge sitting alone at Lackland
Air Force Base, Texas. In accordance with his pleas, he was
found guilty of larceny, wrongful disposition of government
property, making a false official statement, obtaining services
under false pretenses (three specifications), wrongful possession
of a false dependent identification card, and dishonorable
failure to maintain funds in his checking account (two
specifications), in violation of Articles 121, 108, 107, and 134,
Uniform Code of Military Justice, 10 USC §§ 921, 908, 907, and
934, respectively. The military judge sentenced him to a
dishonorable discharge, confinement for four years, total
forfeitures, and reduction to the grade of E-1. The convening
authority approved the sentence as adjudged on January 13, 1998,
and the Air Force Court of Criminal Appeals affirmed the findings
and sentence in an unpublished opinion. (No. 33067, January 23,
2001.)
On July 10, 2001, we granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN
DENYING DEFENSE COUNSEL’S MOTION FOR
ADDITIONAL CONFINEMENT CREDIT FOR
UNDERGOING PRETRIAL PUNISHMENT IN
VIOLATION OF ARTICLE 13, UCMJ.
We hold that the military judge did not err when she denied
appellant additional pretrial confinement credit for the
treatment he received as a pretrial detainee. See generally
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United States v. Fricke, 53 MJ 149, 155 (2000)(holding that “‘de
minimis’ impositions on a pretrial detainee” do not require
credit under Article 13, UCMJ, 10 USC § 813); see generally
McClanahan v. City of Moberly, 35 F.Supp.2d 744, 745-46 (E.D.
Mo.), aff’d, 68 F.3d 494 (8th Cir. 1998).
The military judge in this case made detailed written
findings and denied appellant’s motion for additional sentence
credit for unlawful pretrial punishment under Article 13, UCMJ.
In pertinent part, she said:
BACKGROUND: In the above-captioned
general court-martial tried on 21 August
1997, at Lackland Air Force Base, Texas,
the defense made a motion requesting
administrative confinement credit pursuant
to United States v. Allen, 17 MJ 126 (CMA
1984), for time spent in pretrial
confinement and additional administrative
confinement credit for pretrial punishment
in violation of Article 13, UCMJ.
Appellate Exhibit IV. The government
provided a written response. Appellate
Exhibit IV. An evidentiary hearing was
held on the motion. (R. 119-208). The
court awarded 57 days Allen credit for
time spent in pretrial confinement and
denied the motion requesting additional
credit indicating it would attach
essential findings. (R. 227) These are
those essential findings.
ESSENTIAL FINDINGS:
a. Pretrial Confinement: The accused was
ordered into pretrial confinement at
Lackland AFB on 25 June 1997 by his
commander, Capt Brauer. The accused
remained continuously confined until his
trial on 21 August 1997, a total of 57
days.
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b. Conditions in Pretrial Confinement:
1. Upon inprocessing into pretrial
confinement, the accused was required to
master the rules of the facility before
continuing through inprocessing.
Initially the accused demonstrated a
nonchalant attitude and failed to get the
facility rules right. As a result, he was
required to run to several of the windows
of the facility announcing that he was an
inmate and he was there (at the window)
because he couldn’t get it (the rules)
right. This practice has since been
discontinued by confinement personnel as
being ineffective. Also while
inprocessing, the accused was told to sing
the Air Force song. When he stated he
didn’t know it, he was given the option of
singing his favorite song. He did sing
his favorite song for approximately a
minute. The stated reason for this
practice was to loosen up a new confinee
who is under the stress of inprocessing.
Finally, while being inprocessed, a
confinement NCO showed the accused
shackles and asked whether he wanted to
pawn “this jewelry,” referencing the
misconduct in which the accused was facing
charges of pawning government computers.
2. While in pretrial confinement,
the accused was required to perform
various details including yardwork,
housekeeping, and filling sandbags for
exercises. The post-trial confinees were
also required to perform these details.
If there were no other duties within the
confinement compound, the pretrial
confinees performed no other details,
while the post-trial confinees were
required to perform details around
Lackland AFB. As a result, the post-trial
confinees were allowed to leave the
confinement compound to work as well as to
go to the dining facility. The pretrial
confinees could not leave the compound for
details and had their meals brought to
them. At no time prior to trial did the
accused or his counsel complain of the
accused’s treatment while in confinement.
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* * *
CONCLUSIONS:
a. Pretrial Confinement Credit: The
accused is entitled to credit under United
States v. Allen, supra, for the 57 days
spent in pretrial confinement.
b. Conditions in Pretrial Confinement:
1. Punishment of pretrial confinees
may be appropriate to enforce internal
discipline. United States v. Palmiter, 20
MJ 90 (CMA 1985). To ensure discipline
within a confinement facility, it is
necessary that all confinees understand
the rules. Requiring the accused to yell
into the facility windows when he was
unable to get the rules right while
inprocessing was not unreasonable or
inappropriate. The confinement facility
has since ceased this particular measure
as ineffective. The fact that it was
ineffective or even ill-advised does not
make it violative of Article 13.
Requiring the accused to sing a song was
also not intended as punishment. The
practice was commonly used to break the
tension for new confinees. That the
accused was only required to sing for less
than a minute indicates the intent also
was not to degrade or humiliate the
accused. The statement made by SSgt
Hampton referring to handcuffs as jewelry
was also not excessively demeaning or of a
punitive nature. Although it was not
professional and indicated poor judgment,
it did not so debase the accused as to be
a violation of Art 13.
2. Confinees may be required to
perform useful labor because they remain
active duty airmen. United States v.
Palmiter, supra. The duties to which the
accused was detailed while in pretrial
confinement were not punitive or
disciplinary in nature. Washing cars,
mowing, painting, cleaning, and filling
sandbags may have been menial, but were
reasonable and do not constitute pretrial
punishment. United States v. Dvonch, 44
MJ 531 (AFCCA 1996). None of these
activities was extraordinary in nature and
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all are duties which are routinely
required of airmen in the grade of the
accused. Further, the accused was not
treated as post-trial confinees. When the
accused had completed his duties in the
confinement facility, his work was done.
When the post-trial confinees had no other
work in the facility, they were required
to perform details outside the confinement
compound. That the accused was not
allowed to accompany them in the details
outside the compound or to dine with the
post-trial confinees was also not
punitive. To have allowed the accused to
accompany the post-trial confinees would
have resulted in improper commingling of
the prisoners in public. The details and
circumstances of the accused’s confinement
was neither unduly harsh nor punitive and
served legitimate government objectives of
maintaining discipline, providing duties
for active duty airmen, and accomplishing
necessary, although menial tasks. That
the accused did not complain prior to
trial is further evidence that he was not
illegally punished. United States v.
Washington, 42 MJ 547 (AFCCA 1995).
* * *
3. The administrative disciplinary
actions taken against the accused while he
was in confinement were appropriate.
Commanders are expected to use reprimands
and admonitions to further the efficiency
of their commands. United States v. Hood,
16 MJ 557 (AFCMR 1983). These
administrative tools, used in lieu of
court-martial or nonjudicial punishment,
are inherently a corrective or
administrative function. United States v.
Hagy, 12 MJ 739 (AFCMR 1981). These
actions were taken to discipline or punish
the accused, but not in violation of Art
13. The punishment aspect of the actions
was in response to the misconduct alleged
in the administrative actions not for the
charges already pending before a court-
martial. Referral of charges did not
convey amnesty or a general pardon to the
accused for any misconduct not already
charged. The administrative actions were
also not a sham intended to improperly
influence this court regarding the
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accused. Each action was taken in
response to a specific incident of
misconduct as soon as it became known to
the commander. There is nothing to
suggest that any of the actions were
rushed through solely to get the
misconduct before the court. Capt Brauer
properly held the accused responsible for
his actions. The one incident in which
the commander took action against the
accused was not intended to humiliate the
accused. Although Capt Brauer’s reaction
to the accused’s response was emotional
and less than professional, it was an
isolated incident and does not rise to the
level of public humiliation or
denunciation. United States v. Cruz, 25
MJ 326 (CMA 1987).
RULING: The accused was not subjected to
restriction tantamount to confinement nor
to unlawful pretrial punishment.
Accordingly, the motion for administrative
credit is DENIED.
___ ___ ___
Appellant asserts that his treatment in pretrial confinement
constituted unlawful pretrial punishment, in violation of Article
13, UCMJ. He particularly notes that he was required to sing “I
Believe I Can Fly” and to run from window to window in the jail
yelling, “I’m an inmate and I’m here because I can’t get it
right.” He further complains that he was ridiculed by the
noncommissioned officer in charge of the confinement facility,
stripped of his rank, and made to perform work details with
sentenced prisoners. The military judge conducted a hearing on
this motion and denied appellant’s request for additional credit
against his sentence. The Court of Criminal Appeals affirmed the
trial judge’s ruling and held that Article 13, UCMJ, was not
violated in this case.
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Appellant’s basic complaint is that he was treated “as a de
facto convicted prisoner” and the conditions imposed on him,
“when collectively considered constituted illegal punishment.”
Final Brief at 7, 11. We disagree.* Although a pretrial
detainee may not be subjected to punishment for the crime for
which he is charged, he may be subjected to “discomforting”
administrative measures reasonably related to the effective
management of the confinement facility. See Rapier v. Harris,
172 F.3d 999, 1002-03 (7th Cir. 1999). Moreover, even if these
impositions are not reasonable, “‘de minimis’ impositions on a
pretrial detainee” are not cognizable under Article 13, UCMJ.
See United States v. Fricke, 53 MJ at 155; United States v.
Walsh, 194 F.3d 37, 48 (2nd Cir. 1999) (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992))(“not . . . every malevolent
touch by a prison guard gives rise to a federal cause of
action”).
Turning to appellant’s case, we note that he was a pretrial
detainee, and the complained of orientation procedures were
routinely applied to all persons being committed to the custody
of the confinement facility. While appellant was no doubt
discomforted by this orientation process, he was not publicly
humiliated to the extent condemned in United States v. Cruz, 25
MJ 326 (CMA 1987) (public humiliation before 1200 soldiers in
* The question whether appellant is entitled to credit for an
Article 13 violation is a mixed question of law and fact. We
will not overturn a military judge’s findings of fact unless they
are clearly erroneous. We will review de novo the ultimate
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battalion formations). Moreover, even if these orientation
procedures were inappropriate for a pretrial detainee, they
constituted “‘de minimis’ impositions on a pretrial detainee for
which” administrative credit was not required. United States v.
Fricke, supra; see generally United States v. James, 28 MJ 214,
216 (CMA 1989) (Article 13 standards “conceptually the same as
those constitutionally required by the Due Process Clause of the
Constitution”).
In this regard, we have noted in the past that credit for
unlawful pretrial punishment under Article 13, UCMJ, is not
warranted each time a penal regulation is violated. See United
States v. McCarthy, 47 MJ 162, 166 (1997). In the same vein, not
all mistreatment of a servicemember awaiting trial requires
additional sentence credit under Article 13, UCMJ. See Cuoco v.
Moritsugu, 222 F.3d 99, 109 (2nd Cir. 2000) (rudeness and name-
calling do not rise to the level of a constitutional violation);
McClanahan v. City of Moberly, 35 F.Supp.2d at 745-46
(applications of force without injury are de minimis
impositions); cf. United States v. Walsh, 194 F.3d at 50 (even de
minimis uses of force are unconstitutional if they are shocking
to the conscience of mankind). In our view, the singing and
shouting out required of appellant and the sarcasm directed at
him fell into this legally marginal category. See Cuoco v.
Moritsugu, supra.
question whether appellant is entitled to credit for a violation
of Article 13.
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Appellant also complains that he was stripped of his rank as
an Airman (E-2) and forced to refer to himself as an inmate.
Such a practice, he asserts, is impermissible with respect to a
pretrial detainee, such as himself, who has not yet been tried or
convicted and sentenced to such a punishment. See United States
v. Cruz, 25 MJ at 326; see also United States v. Combs, 47 MJ
330, 333 (1997). The Government disagrees and argues that
“requiring inmates to remove their rank for formations with other
inmates” was a legitimate penal administrative measure, which was
not so onerous as to require administrative credit. Answer to
Final Brief at 10.
“[R]eduction in rank is a well-established punishment, which
unlawfully imposed, warrants sentence relief[.]” See United
States v. Combs, supra. Here, however, there was no testimony
establishing a public removal of rank as accomplished in United
States v. Cruz, supra. Moreover, appellant, who testified with
respect to his pretrial motion for additional credit, did not
testify that his rank insignia was removed or he was prohibited
at any time from wearing it. Finally, as pointed out by the
Court of Criminal Appeals, there was conflict in the testimony
presented in this case as to whether pretrial detainees in this
confinement center were prohibited from wearing their rank. In
these particular circumstances, the military judge was not
required to grant additional pretrial confinement credit to
appellant. Cf. United States v. Combs, supra (unrebutted case
for sentence relief established).
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Appellant finally complains that he was “commingled” with
post-trial confinees and made to perform the same work as
sentenced prisoners. The two-judge court in United States v.
Palmiter, 20 MJ 90, 93-96, 98 (CMA 1985), split on the propriety
of such a prison practice. We conclude that the mere fact a
pretrial detainee and a sentenced prisoner are assigned the same
or similar work inside a confinement facility does not per se
establish unlawful pretrial punishment under Article 13, UCMJ.
It is the nature, purpose, and duration of duties performed by
the pretrial detainee which are determinative of their punitive
intent. Here, filling sandbags, washing and waxing vehicles,
painting red lines, and doing yard work are not acts indicative
of punitive intent, nor so onerous under the circumstances of
this case as to constitute unlawful pretrial punishment.
Although commingling pretrial detainees and convicted prisoners
raises different concerns, there is no showing in appellant’s
case that such commingling even occurred.
Our decision today does not condone the conduct of military
prison authorities in this case, nor signal our approval of the
prison practices they employed. We note that the record before
us suggests the prison authorities themselves have recognized the
“stand and yell” program was ineffective and discontinued it.
Moreover, as the Supreme Court recently said in a related
context, “liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process.” County of Sacramento v. Lewis, 523 U.S. 833, 849
(1998); see also United States v. DeStefano, 20 MJ 347, 349 (CMA
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1985); Payne for Hicks v. Churchich, 161 F.3d 1030, 1040-41 (7th
Cir. 1998). In any event, we hold only that the military judge
was not required to give additional sentencing credit for the
minimally discomforting treatment shown to have been administered
by the military prison authorities in this case. See Cuoco v.
Moritsugu, supra at 109.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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