UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201700342

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UNITED STATES OF AMERICA

Appellee

v.

ISMAEL M. REYESESQUER1

Lance Corporal (E-3), U.S. Marine Corps

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Colonel Peter S. Rubin, USMC.

Convening Authority: Commanding General, 2d Marine Aircraft 

Wing, II Marine Expeditionary Force, Cherry Point, NC.

Staff Judge Advocate’s Recommendation: Lieutenant Colonel 

Edward J. Danielson, USMC.

For Appellant: Commander R. D. Evans, Jr., JAGC, USN.

For Appellee: Lieutenant George R. Lewis, JAGC, USN; Captain 

Brian L. Farrell, USMC.

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Decided 29 May 2018

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Before GLASER-ALLEN, HUTCHISON, and GERDING, Appellate Military 

Judges

 

1 The appellant’s surname on the charge sheet and throughout the record is 

spelled “Reyesesquer.” The appellant also signs his name “Ismael Reyes” and was 

referred to by his counsel as “Lance Corporal Reyes” at trial. Record at 60, 61; 

Defense Exhibit (DE) A at 1; Appellate Exhibit (AE) III at 8; AE IV at 2; AE V at 3; 

Article 32 Waiver at 3; cf. Prosecution Exhibit (PE) 1 at 5 (signed “Ismael Reyes 

Esquer”). 
United States v. Reyesesquer, No. 201700342

2

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This opinion does not serve as binding precedent but may be 

cited as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

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GLASER-ALLEN, Chief Judge:

 A military judge sitting as a general court martial convicted the appellant,

pursuant to his pleas, of attempted sexual assault of a child and sexual 

assault of a child, in violation of Articles 80 and 120b, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 880 and 920(b). The military judge 

sentenced the appellant to 58 months’ confinement, reduction to pay grade E1, forfeiture of all pay and allowances, and a dishonorable discharge. The 

convening authority (CA) approved the adjudged sentence and, pursuant to 

the pretrial agreement, suspended all confinement in excess of 30 months.

 In his sole assignment of error, the appellant asserts the military judge 

applied an incorrect legal standard in denying the defense motion for illegal 

pretrial confinement credit under Article 13, UCMJ. 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 apprehended by Naval Criminal Investigative Service 

(NCIS) agents when he arrived at 14-year-old T’s on base home to continue 

their sexual relationship. Following his arrest, the appellant’s command 

placed him on pretrial restriction due to concerns about his mental wellbeing. The appellant was required to remain within the boundaries of Marine 

Corps Air Station Cherry Point and to muster twice on work days and four

times on weekends or holidays. 

 After findings, the trial defense counsel (TDC) moved for 31 days of 

pretrial confinement credit based upon the appellant’s 126 days of pretrial 

restriction.2 The TDC argued that while there was no command intent to

punish or pretrial restriction conditions tantamount to confinement, the 

duration of the restriction had a punitive effect and from an equity 

standpoint, should result in the requested Article 13, UCMJ, credit. The 

military judge denied the motion, finding the appellant demonstrated neither 

intent to punish nor unduly rigorous pretrial restriction conditions. However, 

 

2 The TDC requested “one for four” credit for pretrial restriction from 5 April 

2017 to 8 August 2017. Record at 36.
United States v. Reyesesquer, No. 201700342

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he did agree to consider the pretrial restriction as mitigation evidence when 

determining an appropriate sentence. 

II. DISCUSSION

The appellant asserts that the military judge erred by using an incorrect 

legal standard to deny his motion for Article 13, UCMJ, confinement credit. 

Specifically, he argues the military judge considered only the “intent to 

punish” factor and neglected the “more rigorous than necessary to ensure the 

accused’s presence for trial” prong of the Article 13, UCMJ, analysis. We 

disagree. 

Article 13, UCMJ, provides, “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 . . . .” Article 13, UCMJ, prohibits two types 

of activities: (1) the intentional imposition of punishment on an accused prior 

to trial, i.e., illegal pretrial punishment, and (2) arrest or pretrial 

confinement conditions that are more rigorous than necessary to ensure the 

accused's presence at trial, i.e., illegal pretrial confinement. United States v. 

Inong, 58 M.J. 460, 463 (C.A.A.F. 2003) (citing United States v. Fricke, 53 

M.J. 149, 154 (C.A.A.F. 2000).3

Whether an appellant is entitled to unlawful pretrial punishment credit 

presents a mixed question of law and fact. United States v. McCarthy, 47 M.J. 

162, 165 (C.A.A.F. 1997). On findings of fact, we defer to the military judge, 

provided those findings are not clearly erroneous. United States v. King, 61 

M.J. 225, 227 (C.A.A.F. 2005). We review the question of whether the 

appellant is entitled to sentence credit for an Article 13, UCMJ, violation de 

novo. United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). The appellant 

bears the burden of proof to establish a violation of Article 13, UCMJ. Id. See 

also RULE FOR COURTS-MARTIAL (R.C.M.) 905(c)(2), MANUAL FOR COURTSMARTIAL, UNITED STATES (2016 ed.).

A. Intent to punish 

The question of intent to punish is “one significant factor in [the] judicial 

calculus” for determining whether there has been an Article 13, [UCMJ,]

violation. United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994) (citing 

Bell v. Wolfish, 441 U.S. 520 (1979)), rev’d on other grounds, United States v. 

Inong, 58 M.J. 460, 464 (C.A.A.F. 2003). The record must disclose intent to 

punish on the part of the government; punitive effect is not enough to 

 

3 See also United States v. DeVault, No. 39147, 2018 CCA LEXIS 120, 

unpublished op. (A.F. Ct. Crim. App. 6 Mar 2018); United States v. Cartwright, No. 

39191, 2018 CCA LEXIS 206, unpublished op. (A.F. Ct. Crim App. 25 Apr 2018).
United States v. Reyesesquer, No. 201700342

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warrant relief. Howell v. United States, 75 M.J. 386, 394 (C.A.A.F. 2016). We 

apply this standard by examining the intent of detention officials or by 

examining whether the purposes served by the restriction or condition are 

“reasonably related to a legitimate governmental objective.” United States v. 

King, 61 M.J. 225, 227 (C.A.A.F. 2005) (quoting Bell, 441 U.S. at 539; 

McCarthy, 47 M.J. at 165, 167).

Here the TDC conceded that there was no reason to believe that the 

appellant had been punished during his pretrial restriction and produced no 

evidence, direct or circumstantial, to suggest the command intended to 

punish the appellant.4 Instead, he argued that it was “[t]he duration, despite 

the restriction paperwork stating it’s non-punitive, it had a punitive effect.”5

The military judge disagreed, ruling: “I’m going to deny the credit for Article 

13 illegal pretrial punishment. There is a requirement that defense must 

demonstrate there was an intent to punish.”6 We agree.

B. Unduly rigorous conditions

The appellant further argues that he was “precluded” from presenting 

restriction conditions evidence because the military judge was focused solely

on “intent.”7 Indeed, it is the appellant’s burden to present evidence of 

“unduly rigorous conditions” that are not related to a legitimate government 

objective. R.C.M. 905(c)(2); see also Mosby, 56 M.J. at 310. Legitimate

governmental interests include protection of the morale, welfare, and safety 

of the unit or the accused, protection of victims or witnesses, or to ensure the 

accused’s presence at trial. See United States v. Mack, 65 M.J. 108, 109 

(C.A.A.F. 2007).

When asked by the military judge, the TDC offered no evidence, save the

restriction order, to rebut the government’s assertion that the appellant’s 

restriction was not unduly rigorous. During his discussion with TDC 

regarding the restriction conditions, the military judge stated, “[t]his is 

clearly an administrative restriction, a fairly–not as restrictive as I’ve seen 

 

4 The appellant relies on our sister court’s decision in United States v. Alston, 75 

M.J. 875, 885 (A. Ct. Crim. App. 2016) for the proposition that “direct evidence of 

intent is often unavailable” in his assertion that the military judge wanted only 

direct evidence. Appellant’s Brief at 13. Here the TDC provided no evidence except 

the restriction order itself. Record 34-37.

5 Record at 35.

6 Id.

7 Appellant’s Brief of 22 Jan 2018 at 13.
United States v. Reyesesquer, No. 201700342

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other pretrial restriction. Mustering and in fairly generous confines of the air 

station.”

8

The appellant now contends his post-arrest actions, such as his 

cooperation with NCIS, “are not the acts of someone who is likely to engage 

in additional crimes while awaiting trial.”9 While the appellant’s NCIS 

cooperation is mitigating sentencing evidence, it does not eliminate the 

command’s responsibility to protect the victim, particularly given the 

proximity between the appellant and the victim’s on base residences.10

Although the military judge’s analysis was brief, we nevertheless find he 

properly considered the second Article 13, UCMJ, prohibition. Thus, we 

conclude the appellant’s pretrial restriction was reasonably related to the 

legitimate governmental objectives of ensuring his safety and well-being, and 

protecting his victim and the local community from someone believed to be a 

sexual predator.11

Thus, we agree with the military judge that there was no Article 13, 

UCMJ, violation in this case. The appellant did not meet his burden of 

demonstrating intent to punish required for illegal pretrial punishment, or 

proving unduly rigorous conditions or lack of legitimate government 

objectives required for finding illegal pretrial restraint. The military judge’s 

findings are not clearly erroneous and we agree with his conclusions of law. 

We are satisfied that the military judge applied the correct legal standards 

for both Article 13, UCMJ, prohibitions by properly considering the 

command’s intent as well as the duration and conditions of the pretrial 

restraint.

Further, we are satisfied that the military judge properly considered the 

pretrial restriction when fashioning an appropriate sentence—fully 

 

8 Record at 37. The appellant was required to remain within the boundaries of 

Marine Corps Air Station Cherry Point and to muster twice on work days and four 

times on weekends or holidays. DE A at 1.

9 Appellant’s Brief at 13. Specifically, the appellant points to: his continual 

cooperation with NCIS, surrendering his cellular telephone, providing a DNA sample 

and two statements approximately a month apart, permitting a search of his 

residence, and “authorizing” the collection of personal linens and clothing worn after 

engaging in sexual relations with T. Id. at 12.

10 The appellant stated that he lived “... a five minute walk” from T’s home.

Record at 24.

11 The appellant’s aunt testified that after his arrest, the appellant had a very 

difficult time emotionally, and he told her “that at one point he actually wanted to 

take his life because he didn’t understand, you know, he’s never been in trouble.” Id.

at 56.
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considering the TDC’s equity argument and eliminating any potential 

prejudice to the appellant. As he explained when announcing the appellant’s 

sentence, “the court would [have] adjudged confinement of 60 months in the 

absence of any pretrial restriction, however, based on the duration of the 

pretrial restriction in this case[,] the court adjudge[s] 58 months of 

confinement.”12

III. CONCLUSION

The findings and sentence as approved by the CA are affirmed.

Senior Judge HUTCHISON and Judge GERDING concur.

For the Court

R.H. TROIDL

 Clerk of Court

 

12 Id. at 63.