              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                           ________________________

                               No. ACM 39105
                           ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                         Derek R. MOORE
             Senior Airman (E-4), U.S. Air Force, Appellant
                           ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 29 September 2017
                           ________________________

Military Judge: Natalie D. Richardson.
Approved sentence: Dishonorable discharge, confinement for 25 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 2 March 2016 by GCM convened at Luke Air Force Base, Arizona.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Lieutenant Colonel Joseph Kubler, USAF; Major Mary El-
len Payne, USAF; Major Meredith L. Steer, USAF; Captain Michael T.
Bunnell, USAF; Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Chief Judge
DREW and Senior Judge MAYBERRY joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
DENNIS, Judge:
    A general court-martial composed of a military judge sitting alone con-
victed Appellant, consistent with his pleas pursuant to a pretrial agreement,
of one specification of sexual assault of a child, seven specifications of sexual
                    United States v. Moore, No. ACM 39105


abuse of a child, and one specification of wrongful possession of child pornog-
raphy, in violation of Articles 120b and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 920b, 934. The military judge sentenced Appellant to a
dishonorable discharge, confinement for 25 years, forfeiture of all pay and al-
lowances, and reduction to the grade of E-1. Appellant was credited with 264
days of pretrial confinement credit and an additional 261 days for illegal pre-
trial punishment.
   In his sole assignment of error, Appellant alleges that his illegal pretrial
punishment warrants additional confinement credit. We disagree. However,
having found errors in the post-trial processing of Appellant’s case, we set aside
the convening authority’s action and order new post-trial processing.

                                I. BACKGROUND
   Appellant, by his own admission, was “addicted” to engaging in sexual mis-
conduct with children under the age of 16. From 4 July 2014 to 8 February
2015, Appellant inappropriately touched and/or communicated with six girls,
ranging in age from 7 to 15. Five of these victims were his cousins, whom he
met and befriended following a family event. The youngest victim, AY, was the
daughter of a fellow Airman and single mother whom he would babysit as a
favor. Between 12 January 2012 and 15 June 2015, Appellant also wrongfully
possessed child pornography, including images he requested from his victims.
    Appellant was placed into pretrial confinement on 12 June 2015 and, de-
spite a motion requesting release, remained confined until his trial. Upon his
initial entry, Appellant was classified as a “medium-in” confinee. This status
gave him liberty to leave the facility with a single escort, with or without shack-
les or handcuffs. Appellant was escorted to the gym annex ten times while in
“medium-in” custody. On 13 July 2015, Appellant was re-classified as a “max-
imum custody” confinee, based solely on a change to the Air Force Instruction
governing confinement, Air Force Instruction (AFI) 31-105, Air Force Correc-
tions System (15 Jun. 2015). While classified as a “maximum custody” confinee,
Appellant was not permitted to leave the facility except to visit the barbershop
or his defense counsel.
     Appellant left the facility on 12 separate days during the 233 days he was
classified as a “maximum custody” confinee. When out of the facility, he was at
all times shackled, handcuffed, and escorted by two armed guards. A witness
working at the confinement facility testified that he was not permitted to use
the gym while a maximum custody confinee because “moving around the gym
with handcuff shackles” would present “a safety concern.” When inside the fa-
cility, he could move freely between his cell and the common areas for 16 hours
per day. However, because he was not permitted to commingle with post-trial
inmates, he would alternate common area access in four-hour periods when

                                        2
                    United States v. Moore, No. ACM 39105


there were no post-trial detainees present. The common area included a recre-
ation area with a 15-foot hallway, but did not include any fitness equipment.
   On one occasion while inside the facility, a guard served Appellant expired
yogurt. When Appellant commented on the expiration date, the guard said,
“This mother f****r’s complaining about expired food; he’s the one who’s a pe-
dophile child molester.” The statement was made so that everyone in the Base
Defense Operations Center and the confinement facility could hear it.
    Appellant’s trial defense counsel filed a motion seeking “4-for-1 credit” for
illegal pretrial punishment. The military judge found that (1) the classification
change to maximum custody was arbitrary; (2) it was more rigorous than nec-
essary to ensure Appellant’s presence at trial; (3) it was not reasonably related
to a legitimate governmental objective; and (4) it was unduly harsh. Based on
these findings, she awarded Appellant an additional 261 days pretrial confine-
ment credit. Specifically, the military judge awarded Appellant an additional
two days for each day he was escorted outside the facility—totaling 24 days—
an additional four days for the day he was ridiculed by the guard—totaling
four days—and an additional 233 days for each day he was classified as “max-
imum custody.”

                                 II. DISCUSSION
A. Pretrial Confinement Credit
    Article 13, UCMJ, 10 U.S.C. § 813, prohibits the intentional imposition of
punishment on an accused before trial and pretrial confinement conditions
that are more rigorous than necessary to ensure the accused’s presence at trial.
United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003). The ultimate issue of
unlawful pretrial punishment presents a mixed question of law and fact.
United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997) (citing Thompson
v. Keohane, 516 U.S. 99, 111–12 (1995)). Whether an appellant was subject to
the intentional imposition of punishment before trial “entails a purpose or in-
tent to punish an accused before guilt or innocence has been adjudicated.” Id.
On facts such as these, “we will defer to the trial judge who is in the best posi-
tion to evaluate them, and on those points, we will reverse only for a clear
abuse of discretion.” Id. In the analysis section of the ruling, the military judge
concluded that “there was no purpose or intent by any governmental authority
to punish the accused, and that there was no imposition of punishment prior
to trial.”

    Despite having received an additional 261 days credit, Appellant now chal-
lenges the military judge’s ruling that he was not entitled to relief for his lack
of access to the gym annex.



                                        3
                     United States v. Moore, No. ACM 39105


    The military judge issued thorough, well-supported findings of fact con-
cerning Appellant’s motion at trial. The military judge concluded the Defense
had not shown that, as either a medium or maximum pretrial confinee, Appel-
lant was entitled to rehabilitation services, including physical exercise, as out-
lined in AFI 31-105. We agree. The instruction on which Appellant so heavily
relies identifies physical fitness “as an integral part of the correctional treat-
ment program.” The military judge correctly noted that pretrial confinement
is not correctional and properly denied Appellant’s request for additional pre-
trial confinement credit for lack of access to the gym. *

    Even if Appellant were entitled to the physical exercise and recreation ser-
vices listed in AFI 31-105, the record makes clear that limiting Appellant’s ac-
cess to the gym was for safety reasons. Such a purpose would not violate Article
13, UCMJ.

B. Post-trial Processing
    Although not raised by Appellant, we note several errors in his post-trial
processing. The proper completion of post-trial processing is a question of law,
which this court reviews de novo. United States v. LeBlanc, 74 M.J. 650, 660
(A.F. Ct. Crim. App. 2015) (citing United States v. Sheffield, 60 M.J. 591, 593
(A.F. Ct. Crim. App. 2004)). When reviewing post-trial errors, we will grant
relief if an appellant presents “some colorable showing of possible preju-
dice.” LeBlanc, 74 M.J. at 660 (quoting United States v. Scalo, 60 M.J. 435, 437
(C.A.A.F. 2005)).
    1. Victim Clemency Submissions
    We first note that there are two victim letters included with clemency mat-
ters in the record of trial, one of which was read aloud during the sentencing
proceeding and is also marked as an appellate exhibit. The other letter is from
AY’s mother. It is neither dated nor marked, nor was it listed as an attach-
ment to the staff judge advocate’s recommendation or addendum. R.C.M.
1107(b)(3)(A)(iii) specifically requires the convening authority to consider such
a statement before taking action. “However, if the convening authority consid-
ers matters adverse to the accused from outside the record, with knowledge of
which the accused is not chargeable, the accused shall be notified and given an
opportunity to rebut.” Id. Here, we have no evidence to establish whether the
letter was considered by the convening authority or whether Appellant was




*In light of this finding, we need not address Appellant’s new request for an additional
21 days of pretrial confinement credit because he was not afforded access to the fitness
facility three times per week while in “medium-in” custody.


                                           4
                   United States v. Moore, No. ACM 39105


afforded notice and opportunity to respond. Without such evidence, we find a
colorable showing of possible prejudice.
   2. Convening Authority’s Action
    In accordance with the terms of the pretrial agreement (PTA), the conven-
ing authority ordered that mandatory forfeitures under Article 58b, UCMJ,
10 U.S.C. § 858b, be waived for a period of up to six months and paid to Appel-
lant’s spouse. However, the convening authority did not suspend or otherwise
modify the adjudged forfeiture of all pay and allowances as required by United
States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002). The failure to do so resulted
in no mandatory forfeitures that could be waived. It would appear this error
was overlooked by all parties, as the record is void of any discussion concerning
the impact of the adjudged forfeitures on the waiver provision included in Ap-
pellant’s PTA.
    In response to this court’s order to show cause, the Government filed a mo-
tion to attach declarations from a financial service technician and the Chief of
Military Justice at Luke Air Force Base. The financial service technician’s dec-
laration establishes that Appellant’s dependents did, in fact, receive Appel-
lant’s pay and allowances in accordance with the terms of the PTA, as if the
convening authority had modified the adjudged forfeitures. Nevertheless, if left
uncorrected, the error could create a liability for future recoupment action
against Appellant or his dependents. See United States v. Lajaunie, 60 M.J.
280, 281 (C.A.A.F. 2004).
    While this issue could ordinarily be resolved by this court’s disapproval of
the adjudged forfeitures, United States v. Johnson, 62 M.J. 31, 38 (C.A.A.F.
2005), the declaration from the Chief of Military Justice includes evidence that
the convening authority did not intend to disapprove the forfeitures. Given this
ambiguity between his action and the evidence before this court, the matter is
best left to the convening authority as the case will be returned for new post-
trial processing to resolve the issue with the victim clemency submissions.

                               III. CONCLUSION
   The convening authority’s action, dated 30 June 2016, is SET ASIDE. The
record of trial is returned to The Judge Advocate General for new post-trial
processing consistent with this opinion. Thereafter, the record of trial shall be




                                       5
                  United States v. Moore, No. ACM 39105


returned to this court for completion of appellate review under Article 66,
UCMJ, 10 U.S.C. § 866.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




                                    6
