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

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Senior Judge SULLIVAN delivered the opinion of the Court.

On August 21, 1997, appellant was tried by a general courtmartial 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and sentence in an unpublished opinion.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
United States v. Corteguera, Jr., 01-0421/AF

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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 courtmartial. 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 namecalling 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.