                             IN THE CASE OF


                       UNITED STATES, Appellee

                                    v.

                  Deandrea J. KING Jr., Airman Basic
                       U.S. Air Force, Appellant

                              No. 05-0044

                         Crim. App. No. 35653

       United States Court of Appeals for the Armed Forces

                          Argued May 3, 2005

                        Decided July 19, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, Major Sandra K.
Whittington, and Captain Jennifer K. Martwick (on brief).

For Appellee: Captain Stacey J. Vetter (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).

Military Judge:    Gregory E. Pavlik


       This opinion is subject to revision before final publication.
United States v. King Jr., No. 05-0044/AF

        Judge ERDMANN delivered the opinion of the court.

        Airman Basic Deandrea J. King Jr. pleaded guilty to

attempting to possess cocaine and ecstasy and to breaking

restriction in violation of Articles 80 and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2000).      A

military judge sitting as a general court-martial sentenced King

to a bad-conduct discharge and nine months of confinement.      The

convening authority approved the sentence and the United States

Air Force Court of Criminal Appeals affirmed the findings and

sentence.    United States v. King, No. ACM 35653 (A.F. Ct. Crim.

App. Aug. 19, 2004).

        Article 13, UCMJ, 10 U.S.C. § 813 (2000), 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, nor shall the arrest or
             confinement imposed upon him be any more
             rigorous than the circumstances required to
             insure his presence, but he may be subjected
             to minor punishment during that period for
             infractions of discipline.

King, who was held in pretrial confinement at the hands of

military authorities from March 9, 2003 until he was tried on

June 26 and 27, 2003, argues that his custody status as a

“maximum security” prisoner and the conditions of his

confinement constituted illegal pretrial punishment and he

should have been awarded credit for a violation of Article 13,

UCMJ.    We granted review to determine whether the military judge



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United States v. King Jr., No. 05-0044/AF

erred in denying King credit for pretrial punishment.1    We agree

in part with King that he is entitled to confinement credit for

a violation of Article 13, UCMJ.

                                FACTS

       King, who was pending administrative discharge from the Air

Force, and a companion went for a night on the town despite the

fact that King was on restriction as the result of nonjudicial

punishment.    During the evening King purchased what he thought

were cocaine and ecstasy from an undercover agent.    King was

initially detained by civilian authorities from February 7 to

March 3, 2003.    After being released by civilian authorities, he

was involved in a disturbance at the enlisted club.   King

subsequently was placed in pretrial confinement at Barksdale Air

Force Base (AFB), Louisiana.    At the time he was confined,

King’s commander listed a number of offenses in support of

pretrial confinement including:    the failure to obey regulations

(underage drinking and weapons violations); use of a controlled

substance (two offenses); the “wrongful use” of a controlled

substance with the intent to distribute; breaking restriction;

disturbing the peace; and the failure to obey an order.




1
    We granted review of the following issue:

            WHETHER THE MILITARY JUDGE ERRED IN DENYING
            APPELLANT CREDIT UNDER ARTICLE 13, UCMJ.



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United States v. King Jr., No. 05-0044/AF

     After an initial evaluation, confinement officials

classified King as a “maximum security” prisoner.   He was

confined in a double occupancy cell with another maximum custody

pretrial inmate.   The general conditions and restrictions

imposed upon King as a maximum custody inmate included:

       1.    Remaining in the cell with the exception of
             appointments or emergencies;

       2.    Eating all meals in the cell (meals were
             delivered to the cell);

       3.    No library or gym privileges (books and gym
             equipment were delivered to the cell);

       4.    No sleeping during duty hours;

       5.    A requirement to wear a yellow jumpsuit and
             shackles when released for appointments; and

       6.    Two escorts, one of whom was armed, whenever
             King was moved to appointments.

King was permitted to watch a television that was placed outside

the cell but close enough for him to reach out and change the

channels.    When he was moved outside the confinement facility,

it was usually early in the morning and through alternate

entrances to minimize public contact.

     When the inmate with whom King shared the cell was

convicted at court-martial, confinement officials requested a

waiver of the rules against commingling pretrial and post-trial

prisoners.   This request was based on the limited confinement

facilities at Barksdale AFB.   When that request was denied, King




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United States v. King Jr., No. 05-0044/AF

was moved on May 1, 2003 to a “6 by 6 by 8” windowless

segregation cell until May 14.

     During King’s pretrial confinement, his defense counsel

requested that King be released from pretrial confinement or

that his custody status be “downgraded.”    In response, defense

counsel received a memo from King’s commander on May 2, 2003

declining to order King’s release and a memo from the

confinement officer on May 12, 2003 responding to counsel’s

custody concerns.   King remained a maximum security inmate

throughout his entire period of pretrial confinement.

     At trial, defense counsel made a motion for appropriate

relief asserting that the conditions of King’s pretrial

confinement amounted to punishment under Article 13.    After

receiving evidence and hearing argument on the motion, the

military judge denied relief, finding that “[t]he conditions

were based on legitimate non-punitive reasons.   The conditions

of [King’s] confinement were not more rigorous than necessary.”

                            DISCUSSION

     King argues that his classification as a maximum custody

inmate was more rigorous than required to ensure his presence

for trial and to satisfy the Government’s concerns for safety in

the confinement facility.   He claims that not only was he

incorrectly classified when he entered pretrial confinement but

also that his continued classification as a maximum security



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United States v. King Jr., No. 05-0044/AF

inmate constituted punishment.   Further, King asserts he was

unlawfully punished by being commingled with a sentenced

prisoner and later when he had to endure two weeks of solitary

confinement after the request for a waiver of the prohibition

against commingling pre- and post-trial prisoners was denied.

     The Government counters that there was no intent to punish

King and no conditions of his pretrial confinement were more

rigorous than required by the circumstances.   The Government

argues that King’s history and the potential charges against

him, as well as the responsibilities of confinement facility

officials, support the finding of no punitive intent and do not

support any inference of punishment.   The Government asserts

that commingling is not a per se violation of Article 13 and

that King’s segregation was a nonpunitive act by a relatively

small confinement facility confronted with limited space and

options.

     Our determination of whether King endured unlawful pretrial

punishment involves both constitutional and statutory

considerations.   See Bell v. Wolfish, 441 U.S. 520, 535-36

(1979); United States v. McCarthy, 47 M.J. 162, 164-65 (C.A.A.F.

1997); Article 13, UCMJ.   We defer to the findings of fact by

the military judge where those findings are not clearly

erroneous.   However, our application of those facts to the

constitutional and statutory considerations, as well as any



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United States v. King Jr., No. 05-0044/AF

determination of whether King is entitled to credit for unlawful

pretrial punishment involve independent, de novo review.   United

States v. Smith, 53 M.J. 168, 170 ((C.A.A.F. 2000); United

States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (“[W]hether

appellant is entitled to credit for a violation of Article 13 is

a mixed question of fact and law.”);   McCarthy, 47 M.J. at 165;

see Thompson v. Keohane, 516 U.S. 99, 113 (1995).    King must

establish his entitlement to additional sentence credit because

of a violation of Article 13.   See Rule for Courts-Martial

(R.C.M.) 905 (c)(2).

     Article 13, UCMJ, prohibits two things:    (1) the imposition

of punishment prior to trial, and (2) conditions of arrest or

pretrial confinement that are more rigorous than necessary to

ensure the accused’s presence for trial.    The first prohibition

of Article 13 involves a purpose or intent to punish, determined

by examining the intent of detention officials or by examining

the purposes served by the restriction or condition, and whether

such purposes are “reasonably related to a legitimate

governmental objective.”   Bell, 441 U.S. at 539; McCarthy, 47

M.J. at 165, 167.

     The second prohibition of Article 13 prevents imposing

unduly rigorous circumstances during pretrial detention.

Conditions that are sufficiently egregious may give rise to a

permissive inference that an accused is being punished, or the



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United States v. King Jr., No. 05-0044/AF

conditions may be so excessive as to constitute punishment.

McCarthy, 47 M.J. at 165; United States v. James, 28 M.J. 214,

216 (C.M.A. 1989) (conditions that are “arbitrary or

purposeless” can be considered to raise an inference of

punishment).

        The military judge made no specific finding of fact that

the confinement facility officials had any intent to punish

King.    Rather, the military judge found that “the conditions

were based on legitimate non-punitive reasons.”    Similarly, the

Air Force Court of Criminal Appeals found neither punishment nor

unduly rigorous conditions.

        We have reviewed the findings of the military judge and the

circumstances and conditions of King’s pretrial confinement,

including King’s status as a “maximum” custody inmate.    We are

reluctant to second-guess the security determinations of

confinement officials.    McCarthy, 47 M.J. at 167-68.   The

exercise of prosecutorial discretion in determining what

offenses to bring to trial does not necessarily alter the

security concerns of confinement facility officials.     Thus, we

do not find that King’s continued classification as “maximum”

custody was so egregious as to give rise to any inference of

intent to punish.    Nor do we find the conditions of King’s

confinement that resulted from his classification to be so

excessive as to amount to punishment.



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United States v. King Jr., No. 05-0044/AF

     Similarly, we do not find that any departure from the

guidelines for evaluation or reevaluation of custody level was

indicative of punishment in this instance.   Table A3.1 of Air

Force Instruction 31-205 (Apr. 2004), provides discretionary

authority to increase or decrease a custody level based upon an

inmate’s behavior.   Despite King’s apparent good behavior in

confinement, any alleged departure from the directive’s

authority to reclassify “does not justify the conclusion that

confinement was a form of punishment or penalty . . . . [and]

does not, per se, require awarding additional credit.   McCarthy,

47 M.J. at 166, (citing United States v. Moore, 32 M.J. 56, 60

(C.M.A. 1991)).

     The fact that defense counsel requested that King be

released from pretrial confinement or that his custody status be

downgraded is not pivotal.    Although the lack of complaint is

some evidence that an accused is not being punished in violation

of Article 13, the fact that a complaint is made does not

necessarily demonstrate punishment or penalty.   McCarthy, 47

M.J. at 166.   Prisoners can be very vocal about their conditions

without those complaints actually reflecting any unlawful

pretrial punishment.

     Additionally, the fact that King was commingled with a

post-trial inmate while a request for waiver was processed does

not entitle King to credit.   Commingling with post-trial inmates



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United States v. King Jr., No. 05-0044/AF

is a factor to consider when assessing conditions of

confinement, but alone it is not a per se violation of Article

13.   United States v. Palmiter, 20 M.J. 90, 96 (C.M.A. 1985).

Considering these conditions of King’s pretrial confinement, we

find neither punishment nor unnecessarily rigorous conditions

warranting additional administrative credit.

      However, we find that King was subjected to punishment

during the two weeks he was in segregation following the denial

of the confinement official’s request for a waiver from the

prohibition against commingling.     The Government has proffered

no explanation as to whether they explored alternatives and no

sound reason why King, a pretrial inmate, was singled out and

suffered segregation in a six-by-six, windowless cell.    Other

than a single reprimand for falling asleep in his chair, the

military judge found that King was not disciplined, caused no

disturbances, made no threats, and was not disrespectful during

his pretrial confinement.   The decision to confine King in a

segregated environment otherwise reserved for inmates with

disciplinary problems was an arbitrary response to the physical

limitations at Barksdale AFB.   We have previously referred to

this type of result:

           Given the limited facilities and programs
           available at most installations, the total
           separation of pretrial confinees from the
           general population of the confinement
           facilities might well result in imposition
           of much harsher conditions than those


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United States v. King Jr., No. 05-0044/AF

            imposed upon   some prisoners who have been
            sentenced to   hard labor. We cannot believe
            that such an   illogical and anomalous result
            is necessary   or was intended by Congress.

Palmiter, 20 M.J. at 94.      Placing King in a segregated

environment with all the attributes of severe restraint and

discipline, without an individualized demonstration of cause in

the record, was so excessive as to be punishment and is not

justified by the Barksdale AFB confinement facility space

limitations.   See McCarthy, 47 M.J. at 165; James, 28 M.J. at

216.

       King is entitled to appropriate credit.    See R.C.M. 305(k).

We agree with King that an appropriate credit in this instance

is three days of administrative credit for each day he endured

solitary segregation.      We shall order the appropriate credit.



                                DECISION

       The decision of the United States Air Force Court of

Criminal Appeals is affirmed except to the extent that it holds

that King is not entitled to additional sentence credit for a

violation of Article 13, UCMJ.     In addition to any other

confinement credits to which he is entitled, King will be

credited with service of forty-two days of confinement.




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