                                   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


    Senior Judge SULLIVAN delivered the opinion of the Court.


     On August 21, 1997, appellant was tried by a general court-

martial 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and sentence in an unpublished opinion.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


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United States v. Corteguera, Jr., 01-0421/AF


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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United States v. Corteguera, Jr., 01-0421/AF


          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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United States v. Corteguera, Jr., 01-0421/AF


                           *   *       *

          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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United States v. Corteguera, Jr., 01-0421/AF


          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 court-
          martial. 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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United States v. Corteguera, Jr., 01-0421/AF


            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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United States v. Corteguera, Jr., 01-0421/AF



     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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United States v. Corteguera, Jr., 01-0421/AF


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 name-

calling 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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United States v. Corteguera, Jr., 01-0421/AF


     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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United States v. Corteguera, Jr., 01-0421/AF


     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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United States v. Corteguera, Jr., 01-0421/AF


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.




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