United States v. Sanchez

STATES, Appellee, UNITED Class, SANCHEZ, First R. Airman

Cara Force, Appellant. Air

No. 99-0761.

Crim.App. No. 33117.

U.S. Court

the Armed Forces.

Argued March 2000. Aug.

Decided stolen, COX, S.J., necessary opinion been and then filed delivered Court, CRAWFORD, C.J., , reports claims. The car was later found in which and and EFFRON, JJ., joined. family friend of California at the home of a GIERKE GIERKE, J., concurring opinion. appellant. filed a

SULLIVAN, J., opinion. dissenting filed a Subsequently, appellant was arrested on Major Stephen Kelly P. Appellant: For charges stemming from incident. On this (on (argued); Colonel Jeanne M. Rueth 4, 1997, military judge sitting December a Blank, brief); Ray T. Lieutenant Colonel Jr. appellant, pursuant alone convicted to her larceny-related charges.1 pleas, of four He Appellee: Captain For Christa S. Cothrel grade sentenced her to be reduced to (argued); Anthony Colonel P. Dattilo and confinement, basic, year a airman (on Rodgers A. Lieutenant Colonel Ronald discharge. Consistent with her bad-conduct brief); Major R. Rider. Jennifer convening authority ap- plea agreement, the proved the sentence but waived the automat- Judge opinion delivered the Senior COX ic for 6 months for the benefit of forfeitures the Court. dependent her children. The sole issue before this court is whether During brig, confinement at the from subjected appellant was to cruel and unusual until it is December June rights punishment in violation of her under ongo- undisputed that she was the victim of Amendment and Article 55 of the ing sexual harassment. verbal Justice, Military Code of Uniform USC § while confined at the Naval Consoli- According appellant’s various state- Miramar, Brig Diego. Specifical- dated San ments, brig it seems she told someone at the ly, granted of: we review harassment, yet it contin- about some of the

WHETHER APPELLANT WAS SUB- Later, supervisor to ued. she asked another AND JECTED TO CRUEL UNUSUAL one take her off the trash detail she had with PUNISHMENT IN VIOLATION OF her, of the inmates who harassed but did not THE EIGHTH AMENDMENT AND AR- statements, say why. From THE TICLE 55 OF UCMJ WHEN seems that she have told several more THE GUARDS AT MILITARY CON- brig, at the asked them not to individuals but REPEATEDLY FINEMENT FACILITY anything do out of fear of retaliation. Final- HER. SEXUALLY HARASSED ly, parole outbriefing at her in June of commanding officer about the she told the The Court of Criminal affirmed the again but once asked that no findings unpublished and the sentence in an action be taken until after she left. opinion. complaint. Appellant then filed a formal FACTUAL BACKGROUND complaint, appellant In her detailed at least separate military guards August appellant ten incidents when loaned her car inappropriate inmates sexual to her ex-husband to travel to California. other said arrived, her, inappropriate things he told him that she or asked her Once However, according ap- planned report Appel- questions. the ear as stolen. sexual pellant, the men never touched or otherwise lant and senior airman manufactured complaint, the story .cover to the effect that the car had harmed her. Based on her 881; (3) Special guilty making § Appellant charged false statements to 1. was with and found $10,000 (1) Special attempting Agents Office of Investi- of: to steal from Allstate of the Air Force stolen, Company by filing gations to the effect that her car had been Insurance false insurance stolen, stolen, stating it had not been in viola- claim her car was when she knew when she knew UCMJ, 907; stolen, § 10 USC it was not violation of Article Uni- tion of Article Justice, 880; (2) (4) obtaining Military wrongfully § a rental car valued at 10 USC form Code of $20,000 Company conspiring $439.73 Insurance with another airman to steal from Allstate by filing pretending company Company to that that her car was from Allstate Insurance false UCMJ, stolen, prop- 10 USC personal in violation of Article insurance claims for car theft and 81, UCMJ, erty, § 10 USC in violation of Article incompatible “punishments Mbits wMch are Navy investigation an internal conducted evolving decency appellant had been with ‘the standards determined that indeed maturing society,’ progress mark the of a facility. Navy while at the The harassed unnecessary ... or ‘involve the disciplinary which proceedings then initiated ” 102-03, pain[.]’ wanton infliction of against military staff involved. omitted). (citations 97 S.Ct. 285 claims that Appellant now this situation Brennan, humiliation, v. In Farmer kept state of her in a constant (1994), 825, 1970, (emotional), 114 L.Ed.2d 811 discomfort, fear, 128 S.Ct. confined, Supreme the defined two factors that Court that of this treatment because while Eighth necessary are for an Amendment she victim of cruel unusual was the regarding conditions claim to succeed of con punishment. She asks this court to “find a First, objective compo an finement. there is Eighth violation of the Amendment for sexu- must in nent where an act or omission result grant appropriate al relief.” harassment “objectively, is the denial of necessities and Final Brief at 8. ” 834, ‘sufficiently 114 serious.’ S.Ct. suffered, appellant the harassment We find 1970, Seiter, 294, quoting v. 501 Wilson U.S. indefensible, did not rise the level of while (1991). 298, 2321, 111 L.Ed.2d 271 115 S.Ct. punishment contemplat- unusual cruel and as subjective, component testing The second Eighth ed the Amendment and Article 55 culpable prison a mind. “In for state of findings the the We affirm of the UCMJ. conditions that state of mind is one of cases court. lower ‘deliberate indifference’ to inmate health or Id., Wilson, safety.” supra quoting at 302-O DISCUSSION S.2 appellant endured inexcusable be- While agree with the Court of We Crimi confinement, during rise havior it did not Appeals, nal 1999 WL and the con of cruel and the level unusual clusions of the and Tenth Second Circuit contemplated by Eighth as the Amendment sexual Courts that harassment and Article 55 of the UCMJ. conclude We circumstances, may, in rise to the some level that verbal sexual harassment at the level However, punishment. of cruel and unusual suffered insufficient to establish although in harassment tMs case the sexual amounting pun- to cruel and conduct unusual unacceptable, appellant was has failed to Further, the record not es- ishment. does demonstrate, matter, objective “as an that requisite state of tablish the mind for an alleged or harassment abuse caused ” Eighth violation. Amendment ‘pain.’ Unpub. op. quoting at v. Freitas (8th Cir.1997). Ault, 1335, 1339 109 F.3d AMOUNTING CONDUCT TO CRUEL case, Eighth In the Freitas Circuit AND UNUSUAL PUNISHMENT harassment or determined that sexual abuse guard sometimes of an inmate Gamble, In Estelle v. 429 97 U.S. to the rise level of “wanton and unnecessary (1976), 50 L.Ed.2d 251 S.Ct. Su may pain” infliction and in those cases preme Court said that framers’ intent give Eighth therefore rise to an Amendment Eighth pre behind the Amendment was to claim. Still: punish torturous vent barbaric and forms history, prevail [t]o In more recent the standard on a constitutional claim of ment. pun an inmate ... constitutes cruel and unusual sexual must what matter, just objective developed prove, into ishment has more than as an Instead, pure alleged “pain” caused physical torture. the current abuse or harassment and, matter, subjective Eighth pro- as that the officer standard is that Amendment Ault, (8th Cir.1997); 109 1338 Thom- Wilson extended deliberate indifference F.3d Columbia, (D.D.C. necessity F.Supp. prison 1 medical as v. 887 standard from cases to District of 1995); Schnieder, (2d 105 F.3d Sexual while in Boddie v. conditions cases. harassment Cir.1997); Rodriguez, a condition of confinement issue under Adkins v. F.3d Cir.1995). See, (10th analysis. e.g., Eighth Freitas v. Amendment question sufficiently culpa- in is no evidence of a indiffer- acted with there deliberate ble state of mind. pain necessary an ence to her fear and Eighth Amendment violation. Freitas, supra citing Hudson McMillian, S.Ct. Farmer, supra, Under the standard (1992). Although typical prison guards and officials must be con- Eighth Amendment violation is where found sciously danger to the aware risk prisoners adequate are medical atten- denied it; ignore they inmate must and choose tion or food3 —a denial of basic human neces- aware the harm or risk of harm have been sities,4 separate opinion Blackman’s —Justice anyway. appellant, continued caused Hudson, 995, sug- supra at S.Ct. case, appellant the instant not tell the did gests psychological pain might be action- guards, supervisors, much less their that she Still, able under the Amendment. being was offended and harassed other any seems that such claim would have to be a Therefore, knowledge inmates. there was no clinically diagnosed well-established and anx- disregard appellant’s situation as 16-17, iety depression. or 112 S.Ct. confinement, required condition of her as “pain” Appellant’s 995. does not meet this standard. under the “deliberate indifference” standard. it, Without she not could have suffered cruel Appellant argues “pain” that she suffered punishment Eighth and unusual under the Eighth consistent with Amendment cruel and Amendment. This, contends, unusual standards. she by the fact that demonstrated she cried Appellant argues although that she never about the situation to her counselor and be- anything guards directly, said to the because great cause she suffered from fear of the sexual, prevalent in harassment cases are so guards position because of their of control today’s society, they have known the should Further, over her. she maintains that profound effect their actions have on would “barrage of harassment inflicted on her. allege her.” Final Brief at 3. She does not presented physi- and she has not evidence of rejected argu- The Farmer Court a similar clinically psychologi- harm cal documented ment,6 holding that “the official must both be cal trauma.5 Even under the most flexible aware of facts from which the inference could standard, “pain” appellant’s situation does be drawn that a risk of substantial serious not rise to the level of cruel and unusual exists, harm and he must also draw the legal in the sense. 837, 511 U.S. at 114 S.Ct. 1970 inference.” added). here, Similarly, (emphasis we must STATE MIND OF reject appellant’s claim and find that prison guards and officials did not have the culpable component The of mind state Here, present requisite culpable is also not state of mind. case. See, Gamble, 97, Boddie, 2, e.g., supra

3. Estelle v. 429 U.S. 5. In at n. was where an inmate 285, (1976); actually grabbed, touched and still this not S.Ct. 50 L.Ed.2d 251 Farmer was 825, enough Eighth Brennan, 1970, to constitute a violation of his U.S. S.Ct. 2, Adkins, rights. supra at Amendment n. (1994); Chapman, Rhodes v. comments, solely where there were sexual verbal 101 S.Ct. 69 L.Ed.2d 59 no That inmate there was also violation found. (1981) (citing Finney, Hutto v. argued implicit that the verbal harassment (1978)). S.Ct. 57 L.Ed.2d 522 assault, i.e., a threat tantamount “force.” was disagreed. The court Farmer, supra 4. See at 114 S.Ct. speaks necessity where the Court to the for hu- case, petitioner urged 6. In that the Court to hold conditions, prison mane and at where it prison deliberately that "a official is indifferent if prison may states "a official be held that liable rendered an unreasonable he ‘knew facts which denying under Amendment hu- obvious; circumstances, risk under such the de- only mane conditions of confinement if he knows fendant should have known of the risk and will risk that inmates face substantial of serious charged knowledge be with such as a matter of Farmer, disregards by failing harm and risk to take law.'” 511 U.S. at 837 n. 114 S.Ct. 1970. reasonable measures to abate it.” Thus, in Eighth Amendment and Article further that when she

Appellant contends jurisdic- view, facility within its my this Court well notify at officials the confinement did UCMJ, 67(c), 10 USC Article nothing pre- tion under they did 867(c), findings respect “with to the § to act continuation, thereby “reflect[ing] vent its convening approved by as and sentence Appel- they deliberately indifferent to were authority and as ... the Court affirmed It is unclear rights.” Final Brief at 4. lant’s Appeals.” Criminal and as- appellant’s posttrial statements from whether, filing report with sertions before SULLIVAN, Judge (dissenting): commanding out-processing, officer appropriate reported she the situation to JURISDICTION exactly persons

persons and who those However, is that have been.7 what is clear below disagree appellate court I with reported person of real she it to a when jurisdiction appel- no to entertain had officer, authority, commanding he did not based on lant’s claim for sentence relief culpable of mind. This have the state by her post-trial sexual harassment particularly by fact that as evidenced v. United guards. generally See Walker situation, he became he soon as aware of the States, 247, 251, 41 19 USCMA CMR investigation. a full instituted (Court (1970) may Military Review concerning of law conditions

take violations during into appellate review of confinement CONCLUSION appropri- in its of an account determination of Air The decision the United States sentence); see also v. Mil- ate United States Force of is therefore Court Criminal 248, (1997). ler, Supreme 250 The 46 MJ affirmed. Goldsmith, 526 decision Clinton v. Court’s 529, 1538, 720 L.Ed.2d 119 S.Ct. 143 GIERKE, Judge (concurring): (1999), military appellate does not render view, my impotent regard. In courts this agree majority’s I the with decision on the 55, UCMJ, post-trial unlawful Article makes granted sepa- merits of the I issue. write “the punishment a matter law related to of rately jurisdiction, the question to address by imposed specified review sentences the “a matter of which Government asserts is under 66 and courts-martial” Articles considerable debate.” Answer to Final Brief UCMJ, §§ 10 USC 866 and 867. at 3. 71(c)(2), 1538; see also Article 119 S.Ct. issue, deciding By the of the this merits 871(e)(2)(execution UCMJ, § 10 of sen- USC jurisdic- Court has sub asserted its silentio tence). Goldsmith, tion. Unlike Clinton UCMJ, expressly authorizes Article (1999), 529, 119 S.Ct. 143 by adjudged more than review of sentences authority un- this case does not involve our It . court-martial. states: Act, All der the Writs nor does it involve § unusual 855. Art. 55. Cruel consequences collateral of a court-martial prohibited punishments sentence. This us on direct case is before by by branding, flogging, of an issue review whether the sentence Punishment or being marking, tattooing body, any in a its or executed manner that increases or on the may severity punishment, to the it violates the cruel or extent other unusual totality I knew if I 7. These facts are unclear based on the have minimized situations. So pleadings statements and to this Court. For her handled came to them about a staff it be regarding (presumably) example, the first time way... .1 to the the same felt I had no access she told someone of her state- voluntary except through a commander reads that she and re- ment ported "felt uncomfortable everyone would then know.” guard] this situation to [with side-by-side Appellant's do other statements read supervisor Petty my quarter McDonald Officer picture they equally paint not a clear because are Msgt CDO in the same Roman.” Later inconsistent. statement, appellant states: by “Tve been harassed male inmates since I’ve my manager here and and LCPO been case adjudged by

not be or in- level suffered es- court-martial is insufficient to subject upon any person to this amounting un- tablish conduct to cruel and flicted irons, chapter. single The use of or dou- punishment” Eighth usual under the Amend- ble, except purpose custody, for the safe ment and Article UCMJ. 53 MJ at 395. prohibited. opines “clinically It psycho- documented added.) (Emphasis Sexual harassment is not “diagnosed logical anxiety trauma” such as or Code, a lawful under our nor was depression” must be shown and was neither adjudged punishment by appellant’s as alleged proven in this case. Id. at 396. pun- court-martial. The “infliction” of such view, appellant my prima In faeie has made a military prisoner by prison on a ishment pain required by case of sufficient guards, adjudged by over and above that 55, UCMJ, and Article Amendment court-martial, unquestionably a matter of hearing DuBay, under United States v. Goldsmith, concern. codal See Clinton v. (1967), USCMA CMR is warrant- (“It pre- would supra S.Ct. 1538 by on if ed this issue contested the Govern- sumably entirely be an matter if a different ment. military authority attempted judg- alter a to by revising finding ment a court-martial regard, I this note that punishment, sentence increase the con- investigat- claims harassment of sexual were trary specific provisions Officer, Commanding ed Naval Con- UCMJ....”). Brig Miramar solidated and found to be cor- open The federal district courts remain Appendix roborated. See A and B. I see no military prisoners present claims for stage proceedings reason at this injunctive, declaratory, or relief based habeas doubt her unrebutted assertions that she suf- post-trial unlawful on confinement conditions. fered a result of as this misconduct Bartlett, Walden v. F.2d See Ault, prison guards. Freitas v. Cf. (10th Cir.1988), Nickels, and Marrie v. 70 (8th Cir.1997) (factual F.3d dis- (D.Kan.1999). F.Supp.2d 1259-60 pute concerning in existence of resolved however, monetary damages, for Claims are favor). Government’s I also note that her by barred the Feres Id. at 1261. doctrine. allegations period covered an extended Nevertheless, military justice sys- unique our brig, particularly in time the and she averred permits tem convicted servieemembers to placed this misconduct her in a constant state judicial appeal make claims on direct “humiliation,” “discomfort,” “fear,” post-trial relief based sentence on unlawful view, my In al- pain. “emotional” she has States, punishment. Walker v. United su- ie., legally leged proven cognizable pain, pra. legal remedy, Resort to military this pain beyond “routine discomfort [which] prior seeking relief in the district federal ‘part penalty of the that criminal offenders court, only appropriate. is not authorized but ” pay against society.’ for their offenses Councilman, generally Schlesinger See McMillian, 1, 9, Hudson v. U.S. 95 S.Ct. L.Ed.2d (1992). Nothing S.Ct. 117 L.Ed.2d (1975) (“But implicit congressional in the by separate said Blackman in his Justice scheme embodied in the is the view Code justifies opinion dismissing military system generally Hudson this that court adequate perform responsibly to and its point will claim at in time. this assigned congressional task. We think this respected that

judgment must be it must INTENT TO PUNISH system military be assumed that court will vindicate con- [or women’s] servicemen’s disagree majority’s I must also with the rights.”). stitutional rejection appellant’s post-trial punishment prison it “find[s] claim because that

REQUIRED PREJUDICE guards requi- did not have and officials culpable state of mind.” at site 53 MJ 396- disagree majority I also with the this particular, that “verbal at the 97. In it asserts instant “[i]n-the Court sexual harassment Court, but it powers this case, guards, only much exceeds the appellant did not tell the being UCMJ. counterintuitive. Article supervisors, that she was less their by other inmates.” offended and harassed appellant’s unusual This is an case where that It is on this basis Id. at 396. by prison complaint of sexual harassment majority concludes has not shown she by authori- acknowledged prison guards was con prison guards [were] officials “the by factually disputed not ties and was danger to the sciously aware of the risk reject a sen- unwilling I am Government. ignore it. . . .” Id. cho[]se inmate and ac- argument on this reduction based tence Brennan, 396; Farmer v. see tout- knowledged misconduct for the reasons (1994). 1970,128 114 S.Ct. addition, majority. ed Accordingly, I complaint her confinement. Appellant’s in this case was has served DuBay hearing would sexually which prison would order she was harassed Moreover, to factu- commanding permit opportunity officer the Government guards. brig complaints ally dispute were unlawful found that these and, not, military permit if acknowledged her sexual it does claim corroborated fash- facility. factually judge find of Criminal at his To or Court harassment respect guards “deliber- with appropriate that these were not ion sentence relief ately not of her indifferent” these circumstances to the remainder sentence.

Case Details

Case Name: United States v. Sanchez

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 30, 2000

Citation: 53 M.J. 393

Docket Number: 99-0761/A

Court Abbreviation: C.A.A.F.