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

                            No. ACM 39607
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                       JACOB A. DEFALCO
          Airman First Class (E-3), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                         Decided 21 May 2020
                        ________________________

Military Judge: Charles G. Warren.
Approved sentence: Bad-conduct discharge, confinement for 15 months,
forfeiture of all pay and allowances for 15 months, reduction to E-1, and
a reprimand. Sentence adjudged 26 September 2018 by GCM convened
at McConnell Air Force Base, Kansas.
For Appellant: Major David A. Schiavone, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF;
Lieutenant Colonel Brian C. Mason, USAF; Major Anne M. Delmare,
USAF.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
Senior Judge MINK delivered the opinion of the court, in which Judge
LEWIS and Judge D. JOHNSON joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 30.4.
                        ________________________
                      United States v. DeFalco, No. ACM 39607


MINK, Senior Judge:
    A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas pursuant to a pretrial agreement (PTA), of one spec-
ification of wrongful use of a controlled substance (cocaine); one specification
of wrongful use of a controlled substance (3,4-methylenedioxymethampheta-
mine, also referred to as “MDMA”) on divers occasions; and one specification of
wrongful distribution of a controlled substance (MDMA), in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. Appellant
also pleaded guilty to one specification of knowing and wrongful possession of
child pornography in violation of Article 134, UCMJ, 10 U.S.C. § 934. 1,2 The
adjudged and approved sentence consisted of a bad-conduct discharge, confine-
ment for 15 months, forfeiture of all pay and allowances for 15 months, reduc-
tion to the grade of E-1, and a reprimand. 3
    The sole issue raised by Appellant on appeal is whether he is entitled to
sentence relief because the conditions of his post-trial confinement violated his
rights under the Eighth Amendment to the United States Constitution 4 and
Article 55, UCMJ, 10 U.S.C. § 855, or, alternatively, because his post-trial con-
finement conditions rendered his sentence inappropriately severe pursuant to
United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016). 5 We find no prejudicial error
and affirm the findings and sentence.

                                   I. BACKGROUND
   In August 2017, Appellant met AG, a 15-year-old civilian female, who told
him that she was 17 years old. Appellant and AG began dating and engaged in
sexual activity. Their sexual relationship continued even after AG told Appel-
lant that she was actually 15 years old. Using his cellphone and the application

1Unless otherwise noted, all references in this opinion to the Uniform Code of Military
Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016 ed.).
2 Appellant pleaded not guilty to one specification alleging wrongful use of Lisdexam-
fetamine on divers occasions in violation of Article 112a, UCMJ, and three specifica-
tions of sexual assault of a child on divers occasions in violation of Article 120b, UCMJ,
10 U.S.C. § 920b, each of which the convening authority withdrew and dismissed after
announcement of sentence in accordance with the terms of the PTA. Appellant also
pleaded not guilty to a specification alleging wrongful production of child pornography,
in violation of Article 134, UCMJ, which was withdrawn and dismissed after announce-
ment of sentence.
3   The adjudged sentence was less than the sentence limitation contained in the PTA.
4   U.S. CONST. amend. VIII.
5Appellant personally raised this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).


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                  United States v. DeFalco, No. ACM 39607


Snapchat, Appellant recorded three videos of himself and AG engaged in vari-
ous sexual acts. Appellant then possessed the three sexually explicit videos,
which he knew were child pornography, on his cellphone.
   In October 2017, while attending a party with AG, Appellant purchased
two pills of MDMA from A1C NW. Appellant consumed one of the pills and AG
consumed the other pill. In early to mid-November 2017, Appellant purchased
three more pills of MDMA from A1C NW. Appellant gave one of the pills to AG
as a present for her sixteenth birthday, and he consumed the other two pills
himself. In addition, on or about 16 November 2017, while attending a party
with AG at A1C NW’s home, Appellant snorted cocaine.
    In December 2017, Appellant’s use of cocaine and MDMA was discovered
when he tested positive for the drugs as the result of a random urinalysis con-
ducted on 21 November 2017. During the ensuing investigation into his drug
offenses, Appellant consented to a search of his vehicle, dormitory room, and
cellphone. Investigators from the Air Force Office of Special Investigations
then found the videos of child pornography during the search of his cellphone
which depicted Appellant engaged in sexual activity with AG.

                               II. DISCUSSION
    Appellant argues his confinement conditions at the Naval Consolidated
Brig in Charleston, South Carolina (NAVCONBRIG Charleston) were cruel
and unusual under the Eighth Amendment and Article 55, UCMJ. He further
argues that even in the absence of an Eighth Amendment or Article 55, UCMJ,
violation, his confinement conditions rendered his sentence inappropriately se-
vere, warranting relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c). We dis-
agree.
A. Additional Background
   After his court-martial on 26 September 2018, Appellant was confined at
NAVCONBRIG Charleston. During the summer of 2019, Marine Corps Lance
Corporal (LCpl) BF began performing duties as a guard at the prison.
    In a declaration submitted to this court in support of his assignment of er-
ror, Appellant asserts that LCpl BF “repeatedly harassed [him] verbally and
physically” during his time in confinement. Specifically, Appellant asserts that
from their first meeting, LCpl BF asked him questions that one “would expect
on a first date” that made Appellant uncomfortable and seemed like LCpl BF
was “flirting” with him. Appellant also asserts that LCpl BF “took any oppor-
tunity” to pat him down, “aggressively ran his hands between [Appellant’s]
thighs and over [his] buttocks, squeezed [his] shoulders, and grabbed [his] pe-
nis twice.” Appellant also stated that he was released from confinement on pa-
role on 14 October 2019 which ended on 25 December 2019.

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                      United States v. DeFalco, No. ACM 39607


    Appellant attached a copy of a six-page handwritten, undated, document to
his declaration, which he states he “wrote for the lead investigator” for
NAVCONBRIG Charleston and “submitted it to the investigator.” 6 Appellant
declares that the handwritten attachment “describes in more detail the inter-
actions” he had with LCpl BF. In the handwritten attachment, Appellant
claims LCpl BF looked at him in the shower longer than necessary; gave Ap-
pellant his Snapchat handle and told Appellant to add him; stared at him; “ac-
cidentally” touched him; smiled at him; gave Appellant his phone number; sug-
gested that they “hang out” in Charleston after Appellant’s release from con-
finement, and suggested that they go out to dinner and go back to LCpl BF’s
place afterwards to “have some fun;” told another inmate to tell Appellant that
LCpl BF had bought Appellant a “present;” winked at Appellant; and told Ap-
pellant that he had bought Appellant an Apple Watch as a “getting out of
prison gift” that Appellant could have after Appellant “hang[s] out” at LCpl
BF’s place, “insinuating a sexual encounter.”
    In response to Appellant’s assertions regarding his post-trial confinement
conditions, the Government obtained and submitted declarations from Mr. MT,
a criminal investigator assigned to NAVCONBRIG Charleston, and Mr. TS,
the Director of the Air Force Security Protection Directorate and the Chair of
the Air Force Clemency and Parole Board. Attached to Mr. MT’s declaration
was his report of investigation into the allegation that LCpl BF planned to
purchase an Apple Watch for Appellant, and the Incident Report of the Prison
Rape Elimination Act 7 (PREA) Review Board at NAVCONBRIG Charleston
conducted to evaluate LCpl BF’s actions with Appellant and another inmate,
MG. Attached to Mr. TS’s declaration were four documents pertaining to deci-
sions regarding Appellant’s Parole and Mandatory Supervised Release.
    In his declaration, Mr. MT stated that on 13 September 2019 he initiated a
formal investigation after another NAVCONBRIG Charleston inmate, MG, re-
ported that LCpl BF had told him that LCpl BF was buying an Apple Watch
for Appellant. LCpl BF was then removed from his position at NAVCONBRIG
Charleston and had no further interaction with Appellant while Appellant re-
mained confined at NAVCONBRIG Charleston. Mr. MT interviewed LCpl BF
on 17 September 2019. LCpl BF admitted that he had an “inappropriate rela-
tionship” with Appellant as well as two other inmates; that he had offered to
socialize with Appellant after Appellant’s release from confinement; that he
planned to purchase an Apple Watch for Appellant but changed his mind; and
that he told Appellant that he would “f**k” him after Appellant’s release from


6Although the handwritten statement is undated, Appellant references the dates 9
September and 13 September in his statement.
7   See Prison Rape Elimination Act of 2003, 34 U.S.C. §§ 30301, et. seq.


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                    United States v. DeFalco, No. ACM 39607


confinement if Appellant was “not in a relationship.” Notably, Mr. MT’s report
of investigation does not include any statement from Appellant and Mr. MT’s
declaration does not indicate that Appellant made a statement to him during
the investigation.
    A PREA Incident Review Board “convened on 23 September 2019 to deter-
mine if allegations made by Prisoner [MG] were substantiated, unsubstanti-
ated, or unfounded.” However, the subject line of the PREA review reads
slightly differently showing the findings address “ALLEGATIONS BY PRIS-
ONER [MG] AND [APPELLANT].” “The PREA Incident Review Board consid-
ered whether the allegation or investigation indicated a need to change policy
or practice to better prevent, detect, or respond to sexual misconduct . . . .”
Relying on Mr. MT’s investigation and supporting documents, the Board “de-
termined no action was required.”
    The Board did, however, make two findings. The first finding was that the
allegation “of staff-on-prisoner voyeurism was unfounded.” The Board found
the “investigation clearly demonstrated that staff voyeurism did not occur and
that facility staff conducted themselves in accordance with policy and proce-
dure.” The Board’s second finding was “[s]taff sexual harassment was deter-
mined to be repeated and sexual abuse was in the form of solicitation for sex
after a prisoner’s release from confinement ([Appellant]). 8 The Board noted
that the “Naval Criminal Investigative Service was informed.”
    Mr. TS’s declaration stated that Appellant was released from NAVCON-
BRIG Charleston on 14 October 2019—his minimum release date—on Manda-
tory Supervised Release until the end of his sentence on 25 December 2019.
We considered the declarations of Appellant, Mr. MT, and Mr. TS in resolving
Appellant’s claims regarding his post-trial confinement conditions. 9



8 Mr. MT’s report of investigation states the Board “substantiated for sexual assault,
substantiated for sexual abuse and found voyeurism unsubstantiated within PREA
guidelines.” From our review of the Board’s report which is attached to the record of
trial, we observe no findings on “sexual assault” and the appropriate characterization
of the voyeurism allegation is “unfounded.” Mr. MT’s report of investigation correctly
identifies the substantiation of sexual abuse.
9 All of the information in Appellant’s record of trial regarding the conditions of his
post-trial confinement was raised after the convening authority took action on Appel-
lant’s sentence and was submitted by the parties and ordered attached to the record
by this court. See United States v. Jessie, __ M.J. __ , No. 19-0192, 2020 CAAF LEXIS
188 (C.A.A.F. 6 Apr. 2020) (citation omitted) (in which the Court of Appeals for the
Armed Forces (CAAF) recognized the authority of a Court of Criminal Appeals to con-
sider matters outside the record, such as the affidavits in this case, when resolving




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                   United States v. DeFalco, No. ACM 39607


B. Law and Analysis
   To the extent there are contradictions between Appellant’s declaration and
those of Mr. MT and Mr. TS, we considered whether a post-trial evidentiary
hearing was required to resolve a factual dispute. See United States v. Ginn,
47 M.J. 236, 248 (C.A.A.F. 1997); United States v. DuBay, 37 C.M.R. 411, 413
(C.M.A. 1967). We are convinced such a hearing is unnecessary. Even if we
resolve the contradictions in Appellant’s favor, the alleged conditions would
not result in our granting relief. Ginn, 47 M.J. at 248.
   1. Cruel and Unusual Punishment
      We review de novo whether an appellant has been subjected to impermis-
sible post-trial confinement conditions in violation of the Eighth Amendment
or Article 55, UCMJ. United States v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007)
(citing United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001)). Both the
Eighth Amendment and Article 55, UCMJ, prohibit cruel and unusual punish-
ment. In general, we apply “the Supreme Court’s interpretation of the Eighth
Amendment to claims raised under Article 55, except in circumstances where
. . . legislative intent to provide greater protections under [Article 55]” is ap-
parent. United States v. Avila, 53 M.J. 99, 101 (C.A.A.F. 2000) (citation omit-
ted). “[T]he Eighth Amendment prohibits two types of punishments: (1) those
‘incompatible with the evolving standards of decency that mark the progress
of a maturing society’ or (2) those ‘which involve the unnecessary and wanton
infliction of pain.’” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006)
(quoting Estelle v. Gamble, 429 U.S. 97, 102–03 (1976)). As the Supreme Court
has explained, “[t]he Constitution ‘does not mandate comfortable prisons,’ but
neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
   Appellant has the burden to establish a violation of the Eighth Amendment
by demonstrating:
       (1) an objectively, sufficiently serious act or omission resulting
       in the denial of necessities; (2) a culpable state of mind on the
       part of prison officials amounting to deliberate indifference to
       [an appellant]’s health and safety; and (3) that [an appellant]
       “has exhausted the prisoner-grievance system . . . and that he
       has petitioned for relief under Article 138, UCMJ . . . .”




allegations of cruel and unusual punishment pursuant to the Eighth Amendment and
Article 55, UCMJ).




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                   United States v. DeFalco, No. ACM 39607


Lovett, 63 M.J. at 215 (footnotes omitted) (quoting United States v. Miller, 46
M.J. 248, 250 (C.A.A.F. 1997)).
    “[A] prisoner must seek administrative relief prior to invoking judicial in-
tervention” with respect to concerns about post-trial confinement conditions.
Wise, 64 M.J. at 471 (alteration in original) (quoting White, 54 M.J. at 472).
“This requirement ‘promot[es] resolution of grievances at the lowest possible
level [and ensures] that an adequate record has been developed [to aid appel-
late review].’” Id. (alterations in original) (quoting Miller, 46 M.J. at 250); see
also United States v. McPherson, 73 M.J. 393, 396–97 (C.A.A.F. 2014). “Absent
some unusual or egregious circumstance,” an appellant must both exhaust the
grievance system at the confinement facility as well as petition for relief under
Article 138, UCMJ. Wise, 64 M.J. at 469 (citing White, 54 M.J. at 472).
    In this case, Appellant did not seek redress through the grievance system
at NAVCONBRIG Charleston or petition for relief under Article 138, UCMJ.
Though Appellant declares that he provided a multi-page, detailed statement
describing his interactions with LCpl BF to Mr. MT, that statement is not in-
cluded in Mr. MT’s report of investigation. Instead, Mr. MT’s investigation
arose from an allegation made by another inmate, MG, and not by any com-
plaint or allegation made by Appellant himself. Relying on our decision in
United States v. McGriff, No. ACM 39306, 2018 CCA LEXIS 567 (A.F. Ct. Crim.
App. 11 Dec. 2018) (unpub. op.), rev. denied, 78 M.J. 487 (C.A.A.F. 2019), Ap-
pellant argues that he satisfied the requirement to exhaust administrative
remedies by providing his statement to Mr. MT. As Appellant correctly states,
we recognized that “the exhaustion of remedies requirement serves to ‘pro-
mot[e] resolution of grievances at the lowest possible level . . . [and] to ensure
that an adequate record has been developed.’” Id. at *22 (alterations in origi-
nal) (quoting Miller, 46 M.J. at 250). We agree, however, with the Government
that Appellant’s reliance on McGriff is misplaced.
    In McGriff, an HIV-positive prison guard infected with gonorrhea engaged
in consensual sexual relations with the appellant without informing the appel-
lant of his condition. Id. at *21. As soon as the appellant became aware that he
had contracted gonorrhea, he reported the actions of the guard to prison au-
thorities and a criminal investigation followed. Id. Upon review, we held that
the “unusual circumstances” of the case obviated the need to exhaust adminis-
trative remedies because the appellant reported the prison guard’s actions to
authorities immediately. Id. at *23.
    We find no such “unusual circumstances” in Appellant’s case. According to
Appellant, the comments and actions of LCpl BF began as soon as LCpl BF
arrived at NAVCONBRIG Charleston in the summer of 2019. However, Appel-
lant never initiated a grievance or complaint against LCpl BF. It was only after
another inmate filed a complaint in September 2019 that Mr. MT began to

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                     United States v. DeFalco, No. ACM 39607


investigate. Once MG filed his complaint, LCpl BF was immediately removed
as a guard from the prison. Appellant’s declaration is silent on when he pro-
vided his handwritten statement to Mr. MT and the statement itself is un-
dated. Mr. MT’s declaration and his report of investigation do not reference
Appellant’s written statement. Under these circumstances, we do not know
what remedial action—if any—might have been taken if Appellant had pre-
sented his claims to either the confinement facility or his chain of command at
any time prior to MG’s complaint. Far from exhausting the prisoner-grievance
system and the Article 138, UCMJ, complaint process, Appellant did not at-
tempt to utilize either. In failing to do so, Appellant deprived both the
NAVCONBRIG Charleston and his command the opportunity to address the
actions of LCpl BF that Appellant detailed in his statement. We find no “unu-
sual or egregious circumstance” excusing Appellant’s failure to exhaust his ad-
ministrative remedies. See Wise, 64 M.J. at 471. Therefore, Appellant is enti-
tled to no relief under either the Eighth Amendment or Article 55, UCMJ.
     2. Article 66, UCMJ—Sentence Appropriateness Review
    Under Article 66(c), UCMJ, we have broad authority and the mandate to
approve only so much of the sentence as we find appropriate in law and fact
and may, therefore, grant sentence relief, without finding a violation of the
Eighth Amendment or Article 55, UCMJ. See United States v. Gay, 74 M.J.
736, 742 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); see also
United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002). In considering Article
66(c)-based claims, we have declined to require appellants to demonstrate they
have previously exhausted administrative remedies prior to seeking judicial
relief. See United States v. Henry, 76 M.J. 595, 610 (A. F. Ct. Crim. App. 2017).
We instead consider the entire record 10 and typically give “significant weight”
to an appellant’s failure to exhaust those remedies before requesting judicial
intervention. Id.
    “Only in very rare circumstances” do we exercise our Article 66(c) authority
to grant sentence relief based upon conditions of post-trial confinement when
there is no violation of the Eighth Amendment or Article 55, UCMJ. United
States v. Ferrando, 77 M.J. 506, 517 (A.F. Ct. Crim. App. 2017) (citations omit-
ted); cf. United States v. Nerad, 69 M.J. 138, 146–47 (C.A.A.F. 2010) (holding

10 We assume, without deciding, that we may consider the same affidavits we consid-
ered to resolve Appellant’s claim under the Eighth Amendment and Article 55, UCMJ,
to determine whether Appellant’s sentence is inappropriately severe. See, e.g., McGriff,
2018 CCA LEXIS 567, at *24–25; see also United States v. Jacinto, ___ M.J. ___, No.
201800325, 2020 CCA LEXIS 136, at *42–43 (N.M. Ct. Crim. App. 30 Apr, 2020) (in
which our sister court recently held that Article 66, UCMJ, jurisdiction in “ultimately
approv[ing] a sentence ‘on the basis of the entire record’ . . . could easily include items
attached to the record on appeal”).


                                            8
                   United States v. DeFalco, No. ACM 39607


that, despite our significant discretion in reviewing the appropriateness of a
sentence, this court may not engage in acts of clemency).
    As a result of the allegation MG made on 13 September 2019, LCpl BF was
removed from his position at the confinement facility and had no other inter-
actions with Appellant during the remainder of the time he was confined there.
As discussed above, prison officials substantiated allegations of sexual abuse
of Appellant and repeated sexual harassment. Mr. MT’s declaration also ad-
dressed “[p]risoner complaints” that LCpl BF conducted “inappropriate frisk
searches.” Mr. MT declared these complaints were unsubstantiated. Mr. MT
did indicate that LCpl BF should not have limited his frisk searches to “pris-
oners whose names he knew” based on “regulations at the Brig” and should
have instead “selected at random based on Daily Security Measures” giving the
example of “every third and sixth prisoner in a row.”
    Clearly, LCpl BF’s undisputed sexual abuse of Appellant and repeated sex-
ual harassment were unprofessional and inappropriate and could foreseeably
cause Appellant or any other similarly-situated inmate to feel uncomfortable,
maltreated, and harassed. Still, we give “significant weight” to Appellant’s fail-
ure to exhaust his administrative remedies before requesting judicial interven-
tion. See Henry, 76 M.J. at 610.
   The relevant question under Article 66(c), UCMJ, is whether Appellant’s
confinement conditions rendered his sentence inappropriately severe. In
United States v. Gay, cited by Appellant as a basis for relief under Article 66(c),
UCMJ, the United States Court of Appeals for the Armed Forces held that this
court did not abuse its discretion in granting relief in Gay but pointed to the
unique facts and legal errors in that case and explained, “[i]n reaching this
conclusion, we do not recognize unlimited authority of the Courts of Criminal
Appeals to grant sentence appropriateness relief for any conditions of post-trial
confinement of which they disapprove.” 75 M.J. at 269.
    As disturbing and unpleasant as Appellant’s confinement conditions—in
the form of LCpl BF’s actions and comments—were, they did not rise to the
level of an Eighth Amendment or Article 55, UCMJ, violation which requires
a denial of “the minimal civilized measure of life’s necessities” or “‘deliberate
indifference’ to inmate health or safety.” Avila, 53 M.J. at 101 (quoting Farmer,
511 U.S. at 834). We do not find the “very rare circumstances” exist in Appel-
lant’s case to exercise our Article 66(c) authority to grant sentence relief based
upon conditions of post-trial confinement without a violation of the Eighth
Amendment or Article 55, UCMJ. See Ferrando, 77 M.J. at 517.




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                     United States v. DeFalco, No. ACM 39607


                                   III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED. 11


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




11We note three errors in the court-martial order (CMO). First, in Specification IV of
Charge I, the words “on divers occasions” are erroneously included in the specification
and must be deleted. Second, in Specification 2 of Charge II is erroneously listed as
Specification 3 and vice versa. Finally, in the Specification of Charge III, the offense of
wrongful production of child pornography was withdrawn and dismissed, a fact which
was omitted from the CMO. We direct a corrected CMO to remedy these errors.


                                            10
