                   U NITED S TATES A IR F ORCE
                  C OURT OF C RIMINAL A PPEALS
                          ________________________

                               No. ACM 39147
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Jamie L. DEVAULT
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 6 March 2018
                          ________________________

Military Judges: Matthew S. Ward (arraignment); Patricia A. Gruen.
Approved sentence: Dishonorable discharge, confinement for 1 year and
6 months, and reduction to E-1. Sentence adjudged 12 May 2016 by GCM
convened at Robins Air Force Base, Georgia.
For Appellant: Major Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Amanda L.K. Linares, USAF; Gerald R. Bruce, Esquire; Mary Ellen
Payne, Esquire.
Before JOHNSON, MINK, and BENNETT, Appellate Military Judges.
Judge BENNETT delivered the opinion of the court, in which Senior
Judge JOHNSON and Judge MINK joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
BENNETT, Judge:
    A military judge found Appellant guilty, consistent with his pleas, of one
specification of attempted sexual assault of a child and one specification of at-
tempted sexual abuse of a child, both in violation of Article 80, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 880. A general court-martial composed
                  United States v. DeVault, No. ACM 39147


of officer members sentenced Appellant to a dishonorable discharge, confine-
ment for one year and six months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence,
except for the adjudged forfeitures, and waived the mandatory forfeitures for
the benefit of Appellant’s wife.
    Appellant asserts one assignment of error: Whether the military judge
failed to grant meaningful relief for a violation of Article 13, UCMJ, 10 U.S.C.
§ 813. We find no relief is warranted and affirm the findings and sentence.

                               I. BACKGROUND
    Appellant used Craigslist.com to meet and date women. During the course
of this online dating, he encountered “Lisa,” who he believed was a 13-year-old
girl. However, Lisa was in fact Air Force Office of Special Investigations
(AFOSI) Special Agent AR who, as part of an undercover law enforcement op-
eration, was pretending to be Lisa in order to catch sexual predators targeting
children.
    After much online flirting, Appellant texted Lisa a picture of his erect pe-
nis. Then, at a time when her parents were supposed to be gone for the evening,
the two planned to rendezvous at a home, purported to be Lisa’s, on Robins Air
Force Base (AFB) so they could have sex. When he tried to enter the home,
Appellant was apprehended by AFOSI; condoms were found in his possession.
    Appellant subsequently waived his rights under Article 31(b), UCMJ, 10
U.S.C. § 831(b), confessed to the agents who interviewed him, and was ordered
into pretrial confinement to prevent him from engaging in further serious crim-
inal misconduct. Appellant’s commander, noting that there were many chil-
dren on Robins AFB, found lesser forms of restraint to be inadequate.
    The Pretrial Confinement Review Officer (PCRO) also found that Appellant
was likely to engage in further serious criminal misconduct. The PCRO based
this finding, in part, on evidence that Appellant attempted to methodically
“groom” Lisa to have sex with him as well as Appellant’s admission that he
could not resist the temptation of having sex with a minor. Appellant’s admit-
ted inability to control his urges also factored into the PCRO’s determination
that lesser forms of restraint were inadequate, as did the fact that Appellant
and his wife were geographically separated and the fact that many children
lived on base.
   Appellant spent 119 days in pretrial confinement at the Houston County
Detention Center (HCDC), a civilian prison near Robins AFB. For the first 72
hours of pretrial confinement, Appellant was under constant observation in a
padded cell where the lights were kept on 24 hours a day. Appellant was given
only a hospital gown to wear and maintains that, during this brief period, he

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                     United States v. DeVault, No. ACM 39147


felt generally uncomfortable. At the conclusion of his initial 72-hour observa-
tion period, Appellant was moved to a regular cell but was segregated from
civilian detainees in accordance with Air Force policy.
    Judge Ward, the first of two military judges who presided over Appellant’s
court-martial, ordered Appellant’s release from pretrial confinement upon con-
cluding that the PCRO abused his discretion under Rule for Courts-Martial
(R.C.M) 305. Specifically, Judge Ward found that the PCRO erred by focusing
his analysis almost entirely on the nature of the allegations against Appellant
and ignoring the evidence supporting Appellant’s release, to include Appel-
lant’s excellent duty performance and total lack of derogatory data. 1 Further-
more, Judge Ward found that the PCRO abused his discretion when he deter-
mined Appellant was a flight risk simply because Appellant and his wife lived
apart.
    At a later hearing, Judge Gruen considered Appellant’s motion for pretrial
confinement credit. Arguing his pretrial confinement violated the Fifth
Amendment of the U.S. Constitution, 2 Article 13, UCMJ, and R.C.M. 305, Ap-
pellant requested five days of additional credit for each day that he spent in
pretrial confinement. Judge Gruen found that the 72 hours Appellant spent in
the padded cell was reasonable; that there was no intentional imposition of
punishment on Appellant; and that the conditions of confinement were not
more rigorous than necessary to ensure his presence at trial. She further found
that the administrative procedures of R.C.M. 305 were correctly followed. Rec-
ognizing, however, that Judge Ward previously determined that the PCRO had
abused his discretion, she awarded Appellant one day of additional confine-
ment credit for each day that he spent in pretrial confinement.
    Appellant’s release from pretrial confinement was based exclusively on
Judge Ward’s interpretation of R.C.M. 305; he made no findings concerning
Article 13, UCMJ, or the Fifth Amendment. Also strictly relying on R.C.M. 305,
Judge Gruen awarded Appellant additional administrative credit. Thus, Ap-
pellant received 238 days of credit for 119 days of pretrial confinement.




1 At the pretrial confinement hearing, Appellant’s commander testified that Appellant
was always professional, had no derogatory data in his past, received the highest rat-
ings on his Enlisted Performance Reports, was not likely to disobey an order, and was
not a flight risk. The PCRO included this information in the extensive review memo-
randum he prepared following the hearing.
2   U.S. CONST. amend. V.


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                  United States v. DeVault, No. ACM 39147


                                II. DISCUSSION
A. Law
    The question of whether an appellant is entitled to pretrial confinement
credit for a violation of Article 13, UCMJ, is a mixed question of fact and law.
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 er-
roneous. United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005). “[A]pplication
of those facts to the constitutional and statutory considerations, as well as any
determination of whether [Appellant] is entitled to credit for unlawful pretrial
punishment involve independent, de novo review.” Id. (citations omitted). Ap-
pellant has the burden of establishing entitlement to additional sentence credit
for violations of Article 13, UCMJ. United States v. Mosby, 56 M.J. 309, 310
(C.A.A.F. 2002).
B. Analysis
  In King, our superior court explained the prohibitions of Article 13,
UCMJ, as follows:

       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 in-
       volves 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 pur-
       poses are “reasonably related to a legitimate governmental ob-
       jective.”

       ...

       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 in-
       ference that an accused is being punished, or the conditions may
       be so excessive as to constitute punishment.

61 M.J. at 227–28 (citation omitted).

   Appellant argues that his pretrial confinement violated Article 13, UCMJ,
amounted to illegal pretrial punishment, and that the conditions of his pretrial
confinement were more rigorous than necessary to ensure his presence at trial.
We disagree.

    Staff Sergeant (SSgt) JG, the Noncommissioned Officer In Charge of con-
finement at Robins AFB, testified that military inmates are always segregated


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                  United States v. DeVault, No. ACM 39147


and monitored for their first 24 hours of confinement in accordance with Air
Force policy. If there are safety concerns, this period may extend beyond 24
hours. According to SSgt JG and Lieutenant BB, the civilian official in charge
of operations at the HCDC, Appellant was confined in accordance with Air
Force policy and not punished during his time in pretrial confinement.
    In pretrial confinement, Appellant did, initially, suffer multiple emotional
breakdowns. During these breakdowns, Appellant would cry, bang his head
against a wall, and repeatedly exclaim that his life was over. When Appellant
testified for the limited purpose of his motion for pretrial confinement credit,
he acknowledged that his behavior was a legitimate cause for concern. He fur-
ther conceded that any other inmate housed in the padded cell would have been
required to wear a hospital gown and that the gown was not meant to humili-
ate him. Appellant also acknowledged that the lights were kept on for his own
safety. According to Appellant, his breakdowns resulted not from the condi-
tions of his confinement but rather from being overwhelmed by the realization
that he had been imprisoned and was facing prosecution for pursuing a sexual
relationship with a minor.
   At the conclusion of the initial 72-hour surveillance period, Appellant was
given an orange jumpsuit and moved to a regular cell. There, Appellant was
given access to television, books, magazines, and a recreation yard. Further-
more, Appellant received visits from his first sergeant, supervisor, chaplain,
and family members. He was allowed to make phone calls and to make pur-
chases from the HCDC commissary. Appellant was never denied access to a
counselor.
    When he ruled that the PCRO abused his discretion in deciding to continue
Appellant’s pretrial confinement, Judge Ward took issue with the PCRO’s
analysis and conclusions, which he felt lacked substantiation. Even if the
PCRO’s decision did lack adequate justification under R.C.M. 305, this, by it-
self, does not equate to an intent to punish, which is necessary for a violation
of Article 13, UCMJ.
    We find there is no evidence of intent to punish Appellant. The purpose
served by placing Appellant in pretrial confinement was to protect the local
community from someone who was, at the time, believed to be a sexual preda-
tor. Thus, his pretrial confinement was “reasonably related to a legitimate gov-
ernmental objective.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); see also McCar-
thy, 47 M.J. at 167 (quoting United States v. James, 28 M.J. 214, 216 (CMA
1989)). Furthermore, under the circumstances, the conditions of Appellant’s
pretrial confinement were not more rigorous than necessary to ensure his pres-
ence at trial. Appellant’s behavior during the first three days of his pretrial
confinement understandably raised concerns that warranted the special treat-



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                  United States v. DeVault, No. ACM 39147


ment he received at the HCDC. These conditions did not constitute punish-
ment, and they do not give rise to any inference that Appellant was being pun-
ished. McCarthy, 47 M.J. at 165; James, 28 M.J. at 216.
    Therefore, we find that Appellant’s pretrial confinement did not violate Ar-
ticle 13, UCMJ. R.C.M. 305(j) and (k) authorize a military judge who is review-
ing the propriety of an accused’s pretrial confinement to award credit for,
among other things, an abuse of discretion or noncompliance with R.C.M. 305.
Pursuant to these provisions, Judge Gruen appropriately awarded Appellant
one additional day of credit for each day that he was in pretrial confinement,
and we decline to award Appellant any further relief.

                              III. CONCLUSION
    The findings and sentence are correct in law and fact, and no error materi-
ally prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and
sentence are AFFIRMED.




                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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