United States v. Moore
ACM 39105
| A.F.C.C.A. | Sep 29, 2017Background
- Appellant pled guilty at a general court-martial to multiple counts of sexual assault/abuse of children and wrongful possession of child pornography; military judge sentenced him to a dishonorable discharge, 25 years confinement, forfeitures, and reduction to E‑1.
- Appellant was in pretrial confinement for 264 days and the military judge awarded an additional 261 days credit for illegal pretrial punishment.
- Initial custody classification was “medium‑in” (some escorted outside movement permitted); on July 13, 2015, he was reclassified to “maximum custody” solely because AFI 31‑105 changed.
- While in “maximum custody” for 233 days he was generally confined to facility, escorted when outside, shackled, and denied use of the gym annex; once a guard publicly insulted and identified him as a child molester.
- The military judge found the custody change arbitrary and unduly harsh and awarded: 2 days credit per escorted outside day (24 days), 4 days for the insult (4 days), and 1 day per day for the 233 days classified as maximum custody (233 days) — totaling 261 extra days.
- This court affirmed denial of additional credit for loss of gym access while in medium or maximum custody, but identified post‑trial processing errors (undocumented victim clemency letter and an ambiguity/error regarding adjudged forfeitures and PTA waiver) and set aside the convening authority’s action for new post‑trial processing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether additional Article 13 pretrial‑punishment credit was warranted for denial of gym access and stringent custody conditions | Appellant: custody reclassification and denial of gym/recreation were punitive, arbitrary, and more rigorous than necessary — entitling him to credit (sought more than awarded) | Government: reclassification followed AFI change; restrictions were security/safety driven, not punitive; pretrial confinement need not provide correctional‑level rehab | Court: Military judge’s factual findings that no intent to punish were upheld; denial of extra credit for gym access affirmed because pretrial confinement is not a correctional program and restrictions were safety‑related |
| Whether the custody reclassification was arbitrary and unduly harsh | Appellant: reclassification was arbitrary (solely based on AFI change) and excessive | Government: reclassification implemented per AFI and aimed at security/safety | Court: Military judge correctly found reclassification arbitrary/unduly harsh and awarded 261 days credit; appellate court deferred to judge’s findings on mixed question of law and fact |
| Whether undisclosed victim clemency material was considered by convening authority without notice to appellant | Appellant: unknown letter may have been considered, denying right to notice and opportunity to rebut | Government: unclear record whether letter was considered | Court: Found a colorable showing of possible prejudice; remanded for new post‑trial processing to resolve whether convening authority considered the undated letter and whether appellant was afforded notice/opportunity to respond |
| Whether convening authority’s action correctly implemented PTA waiver of mandatory forfeitures | Appellant: PTA specified waiver to pay spouse; the action did not expressly suspend adjudged forfeitures, creating potential recoupment liability | Government: administrative declarations show dependents received pay consistent with PTA but convening authority’s action failed to effect required modification | Court: Because of ambiguity and potential future liability, and because convening authority’s intent is unclear, set aside action and returned record for new post‑trial processing to resolve forfeiture/PTA issue |
Key Cases Cited
- United States v. Inong, 58 M.J. 460 (C.A.A.F.) (Article 13 prohibits intentional pretrial punishment and overly rigorous confinement)
- United States v. McCarthy, 47 M.J. 162 (C.A.A.F.) (unlawful pretrial punishment is mixed question of law and fact; defer to trial judge on findings)
- Thompson v. Keohane, 516 U.S. 99 (U.S. Sup. Ct.) (framework for mixed questions of law and fact)
- United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App.) (post‑trial processing reviewed de novo; relief if colorable showing of possible prejudice)
- United States v. Emminizer, 56 M.J. 441 (C.A.A.F.) (requirements for modifying/suspending adjudged forfeitures)