                       UNITED STATES, Appellee

                                    v.

                   Joshua P. LOVETT, Staff Sergeant
                       U.S. Air Force, Appellant

                              No. 03-0072

                         Crim. App. No. 33947

       United States Court of Appeals for the Armed Forces

          Argued October 19, 2005, and February 7, 2006

                         Decided June 6, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined.

                                 Counsel

For Appellant: Major Karen L. Hecker (argued); Colonel Carlos
L. McDade, Major Bryan A. Bonner, Major Terry L. McElyea, Major
Sandra K. Whittington, Major James M. Winner, and Captain David
P. Bennett (on brief).

For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F.
Spencer, and Major John C. Johnson (on brief).

Military Judges:    Bruce T. Brown and Linda S. Murnane


       This opinion is subject to revision before final publication.
United States v. Lovett, No. 03-0072/AF

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Joshua P. Lovett was charged with possessing

Percocet, raping a child under the age of twelve, soliciting

another to commit murder, and soliciting another to plant crack

cocaine, in violation of Articles 112a, 120, and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 912a, 920, 934

(1994), respectively.   Lovett entered pleas of not guilty and

following a general court-martial was found guilty of possessing

Percocet, raping a child, and the lesser included offense of

soliciting another to make his wife “disappear or to wrongfully

prevent her from appearing in a civil or criminal proceeding.”

He was sentenced to a dishonorable discharge, confinement for

fifteen years, forfeiture of all pay and allowances, and

reduction to pay grade E-1.   The convening authority approved

the sentence and, on initial review, the United States Air Force

Court of Criminal Appeals affirmed the findings and sentence in

an unpublished decision.   United States v. Lovett, No. ACM

33947, 2002 CCA LEXIS 230, at *31-*32, 2002 WL 31235410, at *11

(A.F. Ct. Crim. App. Sept. 9, 2002).

     We granted Lovett’s initial petition for review and found a

fatal variance between the “precise specification” of the

solicitation charge and “the general findings as returned by the

members.”   United States v. Lovett, 59 M.J. 230, 237 (C.A.A.F.

2004).   We set aside the decision of the Air Force court as to



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United States v. Lovett, No. 03-0072/AF

Charge II (solicitation) and the sentence, and returned the case

to the Judge Advocate General of the Air Force for remand to the

lower court, with direction that that court could either

reassess the sentence or order a sentence rehearing.       Id.

        The Air Force court reassessed the sentence and affirmed

the dishonorable discharge, confinement for fourteen years,

forfeiture of all pay and allowances, and reduction to E-1.

United States v. Lovett, No. ACM 33947, 2004 CCA LEXIS 201, at

*7, 2004 WL 1932870, at *3 (A.F. Ct. Crim. App. Aug. 25, 2004).

Lovett again petitioned this court for a grant of review and we

granted two issues.1     The first issue is whether life without

eligibility for parole (LWOP) was an authorized punishment for

rape of a child under twelve years of age after November 18,

1997.    The second issue is whether Lovett was subjected to cruel


1
    We granted review of the following issues on April 15, 2005:

             I.    WHETHER THE MILITARY JUDGE ERRED BY
                   INSTRUCTING THE PANEL THAT THE MAXIMUM
                   SENTENCE WAS LIFE WITHOUT PAROLE WHEN
                   THAT PUNISHMENT WAS NOT AN AUTHORIZED
                   SENTENCE AS ITS IMPLEMENTATION HAD NOT
                   YET BEEN ORDERED BY THE PRESIDENT, OR,
                   IN THE ALTERNATIVE, WHERE INSUFFICIENT
                   EVIDENCE WAS PRESENTED AT TRIAL TO
                   PROVE THAT ANY ALLEGED ACTS OF RAPE HAD
                   OCCURRED AFTER 19 NOVEMBER 1997.

             II.   WHETHER APPELLANT WAS SUBJECTED TO
                   CRUEL AND UNUSUAL PUNISHMENT WHILE IN
                   POST-TRIAL CONFINEMENT.

    61 M.J. 146 (C.A.A.F. 2005).



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United States v. Lovett, No. 03-0072/AF

and unusual punishment while in post-trial confinement.    After

oral argument on the second granted issue, we determined that

“additional briefs from the parties would be helpful with

respect to whether confinement for life without the possibility

of parole was a permissible part of the maximum sentence in this

case.”    United States v. Lovett, 62 M.J. 321 (C.A.A.F. 2005).

We subsequently specified an additional issue.2

       We hold that LWOP was an authorized punishment for the

offense of rape of a child under the age of twelve after

November 18, 1997.    We need not decide whether the Air Force

Court of Criminal Appeals erred in determining when the sexual

acts with MM occurred because we conclude that any instructional

error on LWOP by the military judge was harmless.   Finally, we

hold that Lovett has failed to establish an Eighth Amendment

“cruel and unusual punishment” claim and therefore we affirm the

Air Force Court of Criminal Appeals.




2
    We specified the following issue:

            WHETHER THE COURT OF CRIMINAL APPEALS ERRED
            IN FINDING THAT “SOME OF THE APPELLANT’S
            SEXUAL ACTS WITH MM OCCURRED AFTER 18
            NOVEMBER 1997” WHERE THE MEMBERS RENDERED A
            GENERAL VERDICT. See United States v.
            Walters, 58 M.J. 391 (C.A.A.F. 2003).

    62 M.J. 321 (C.A.A.F. 2005).



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United States v. Lovett, No. 03-0072/AF

                            DISCUSSION3

1.   Life Without Eligibility for Parole.

      The first granted issue in this case questions whether LWOP

was authorized for Lovett’s offense of raping a child under the

age of twelve.   The President signed legislation4 enacting LWOP

into law on November 18, 1997.5   The President did not, however,

make conforming amendments to the Manual for Courts-Martial

(MCM) until April 11, 2002.6

      Lovett’s initial claim is that LWOP was not an available

punishment in trials by courts-martial until April 11, 2002,

when the President amended the MCM.   Because all the “divers

occasions” charged under Article 120, UCMJ, occurred prior to

April 11, 2002, Lovett argues that the military judge erred by

instructing the members that LWOP was an authorized punishment

in his case.   In United States v. Stebbins, 61 M.J. 366, 368

(C.A.A.F. 2005), we held that LWOP was an authorized punishment


3
  As the underlying facts were fully set forth in United States
v. Lovett, 59 M.J. 230 (C.A.A.F. 2004), we will not restate them
here.
4
  National Defense Authorization Act for Fiscal Year 1998, Pub.
L. No. 105-85, § 581, 111 Stat. 1629, 1759 (1997) (codified at
Article 56a, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 856a (2000)).
5
  Signing Statement, 33 Weekly Comp. Pres. Doc. 1861 (Nov. 18,
1997).
6
  Exec. Order No. 13,262, 67 Fed. Reg. 18,773, 18,779 (Apr. 11,
2002).



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United States v. Lovett, No. 03-0072/AF

for rape of a child under twelve years of age committed after

November 18, 1997, the date upon which the President signed the

LWOP legislation into law.7    Therefore LWOP was an authorized

sentence for the rape of a child after November 18, 1997.

       Alternatively, Lovett argues that LWOP is not an available

punishment in his case because the evidence does not prove that

any single act of alleged rape occurred after November 18, 1997.

Because the divers occasions alleged in the specification of

rape encompassed periods of time both before and after that

date, Lovett claims that at least one of the divers acts must

have been found to have occurred after November 18, 1997 in

order to support LWOP as an authorized punishment in his case.

       The Air Force Court of Criminal Appeals considered this

issue in its initial review.    That court, utilizing its Article

66(c), UCMJ, 10 U.S.C. § 866(c) (2000), factfinding power

stated, “Based upon these facts, we find that some of the

appellant’s sexual acts with MM occurred after 18 November

1997.”   Lovett, 2002 CCA LEXIS 230, at *31, 2002 WL 31235410, at

*11.   The general verdict of guilt rendered by the court

members, however, did not reflect any finding by the members


7
  See also United States v. Ronghi, 60 M.J. 83, 86 (C.A.A.F.
2004) (LWOP authorized punishment for premeditated murder
committed after November 18, 1997); United States v. Christian,
63 M.J. __ (C.A.A.F. 2006) (LWOP authorized punishment for
forcible sodomy of a child under twelve years of age committed
after November 18, 1997).



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United States v. Lovett, No. 03-0072/AF

that a single act of rape occurred after the effective date of

LWOP.    Thus we specified an issue concerning whether the Air

Force court could make such a finding in light of United States

v. Walters, 58 M.J. 391 (C.A.A.F. 2003).

        Having considered that specified issue, we conclude that we

need not determine whether the Air Force court erred by making

this factual determination.8    Even if we were to conclude that

the lower court erred and that LWOP was not an available

punishment under the facts of this case, any error would be

harmless.    Without LWOP as an available punishment, Lovett would

have nonetheless faced a maximum punishment that included

confinement for life.    See Manual for Courts-Martial, United

States pt. IV, para. 45.e(1) (1998 ed.); see also Stebbins, 61

M.J. at 368 (noting that prior to the adoption of LWOP,

confinement for life was an authorized punishment for rape).

Despite this maximum, trial counsel argued for a term of

confinement of thirty-five years.      And, despite the Government’s

argument for thirty-five years of confinement and the




8
  Although we do not reach the specified issue, we note that the
Government concedes in its brief: “The United States concedes
that, given the nature of the evidence and the general verdict
the members rendered in this pre-Walters case, it is difficult
to pinpoint with certainty whether the members convicted
[Lovett] of any rapes which occurred after 18 November 1997,
when the maximum confinement for a rape charge increased from
life to life without parole.”



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United States v. Lovett, No. 03-0072/AF

instructions that LWOP was an authorized punishment9, the members

returned a sentence that included only fifteen years

confinement.   Even assuming LWOP was not an available punishment

and the military judge’s instruction to the contrary was

erroneous, we are convinced that the members were unaffected by

the instruction.   Any error with respect to the maximum

punishment was therefore harmless.

2.   Cruel and Unusual Punishment.

      “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishment inflicted.”   U.S.

Const. amend. VIII; see also Article 55, UCMJ, 10 U.S.C. § 855

(2000).   The Supreme Court has stated that punishments violate

the Eighth Amendment when they “are incompatible with the

evolving standards of decency that mark the progress of a

maturing society, or which involve the unnecessary and wanton

infliction of pain.”   Estelle v. Gamble, 429 U.S. 97, 102-03

(1976) (internal quotation marks and citations omitted).    Lovett

asserts that he should be awarded confinement credit because he

was forced to endure oppressive, dangerous, and unsanitary

conditions that violated the Eighth Amendment while he was

confined at the “old” United States Disciplinary Barracks


9
  Although general instructions on findings by exceptions and
substitutions were given in this case, the better practice in
this situation is for the military judge to clearly instruct the
members as to the scope of the pertinent dates and their options
or require appropriate special findings.

                                 8
United States v. Lovett, No. 03-0072/AF

(USDB)10 between July 23, 1999 and September 30, 2002.      We

conclude that even if the facts as asserted by Lovett are true,

he has failed to meet his burden of establishing grounds for

relief.

     We have no findings of fact with respect to this issue.

Lovett’s claim of cruel and unusual punishment arose post-trial

and is necessarily supported by extra-record matter.     We have

granted Lovett’s motions to submit a number of documents

relating to the conditions of his post-trial confinement at the

old USDB:   (1) an undated declaration by Lovett; (2) a

declaration by Lovett dated February 22, 2005; (3) an American

Correctional Association Visiting Committee Report for the USDB

dated December 9, 1999; and (4) two stipulations of expected

testimony from a separate judicial proceeding litigating an

issue similar to this one.

     Lovett’s declarations assert that he was exposed to the

following conditions during his confinement at the old USDB:

            1.   a cell that was only four feet wide,
                 twelve feet long, and seven and one-half
                 feet high;

            2.   inadequate ventilation during periods of
                 extreme temperatures;

            3.   falling pieces of walls and ceilings
                 that would strike Lovett;

10
  In 1994, the Secretary of the Army decided to construct a new
U.S. Disciplinary Barracks (USDB). Construction commenced in
the summer of 1998. Lovett was apparently transferred to the
new facility on or about September 30, 2002.

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United States v. Lovett, No. 03-0072/AF


          4.   vermin in the dining facility;

          5.   sewage backed up in the serving and
               eating areas of the dining facility
               during heavy rains;

          6.   lead-based paint on the walls and
               ceilings of Lovett’s cell;

          7.   asbestos coating on the pipes in the dry
               cleaning facility where Lovett worked;

          8.   dry cleaning solvent leaking from the
               machines in the dry cleaning facility
               creating a risk of electrocution and
               exposure to fumes from the solvent;

          9.   extended periods of lockdown, through no
               fault on Lovett’s part, during which he
               was not permitted to exercise or shower;

          10. meals served during these lockdowns
              included stale foods and milk that was
              beyond its expiration date; and,

          11. high iron and lead content from the
              faucet providing the only drinking water
              available in the cell.

Lovett’s declarations also assert that he made a number of

complaints about these conditions to various officials or

agencies including two Commandants of the USDB, the staff judge

advocate, the chief of staff, the “Department of the Air Force,

Office of the Assistant Secretary”, and the Air Force Clemency

and Parole Board.   Lovett also asserts that he was told that a

complaint under Article 138, UCMJ, 10 U.S.C. § 938 (2000), was

an inappropriate means of addressing “matters relating to . . .




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United States v. Lovett, No. 03-0072/AF

confinement” and therefore he joined a class action law suit

challenging the conditions at the old USDB.

        Although the Government has submitted extra-record matters

contesting the facts within Lovett’s submissions, we do not need

to remand this case for factfinding if, under the principles in

United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997), “we can

determine that the facts asserted, even if true, would not

entitle appellant to relief.”    United States v. White, 54 M.J.

469, 471 (C.A.A.F. 2001); see also United States v. Avila, 53

M.J. 99, 101 n.1 (C.A.A.F. 2000).      We determine whether the

facts alleged constitute cruel and unusual punishment de novo.

White, 54 M.J. at 471 (citing 2 Steven A. Childress & Martha S.

Davis, Federal Standards of Review § 7.05 (3d ed. 1999)).

        As noted above, the 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.”    Estelle, 429 U.S. at 102-03 (internal

quotation marks and citations omitted).     We apply the Supreme

Court’s interpretation of the Eighth Amendment in the absence of

any legislative intent to create greater protections in the

UCMJ.    See White, 54 M.J. at 473; Avila, 53 M.J. 101.     Because

Lovett makes no claim that the conditions of his confinement

violate any greater protections afforded by Article 55, UCMJ, we



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United States v. Lovett, No. 03-0072/AF

need not determine the extent to which that statute may be

broader than the Eighth Amendment.     See United States v.

Matthews, 16 M.J. 354, 368 (C.M.A. 1983) (noting that Article

55, UCMJ, intended to provide even greater protections than the

Eighth Amendment (quoting United States v. Wappler, 2 C.M.A.

393, 396, 9 C.M.R. 23, 26 (1953))).

       To support his claim that the conditions of his confinement

violated the Eighth Amendment, Lovett must show:    (1) an

objectively, sufficiently serious act or omission resulting in

the denial of necessities11; (2) a culpable state of mind on the

part of prison officials amounting to deliberate indifference to

Lovett’s health and safety12; and (3) that he “has exhausted the

prisoner-grievance system . . . and that he has petitioned for

relief under Article 138, UCMJ, 10 USC § 938 [2000].”13

       Assuming, without deciding, that the conditions of Lovett’s

confinement were as he has claimed them to be and that he

exhausted his grievance system remedies, we conclude that he has

not sustained his burden of establishing deliberate indifference

to his health and safety.    Lovett’s burden to show deliberate


11
  Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991); Rhodes v. Chapman, 452 U.S.
337, 347 (1981)).
12
     Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03).
13
  United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)
(quoting United States v. Coffey, 38 M.J. 290, 291 (C.M.A.
1993)) (internal quotation marks omitted).

                                  12
United States v. Lovett, No. 03-0072/AF

indifference requires him to show that “official[s] [knew] of

and disregard[ed] an excessive risk to inmate health or safety;

the official[s] must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists, and [they] must also draw the inference.”    Farmer, 511

U.S. at 837.   We will not speculate about what prison officials

knew of the specific conditions of Lovett’s confinement or what

conclusion they might have drawn.     The burden to make that

showing rested upon Lovett.   He has only indicated that he made

unspecified complaints to various officials or agencies and that

he observed no change or got no response.    In the absence of

evidence showing what the officials knew and that they

disregarded known risks to inmate safety, Lovett has failed to

demonstrate that prison officials were deliberately indifferent

to any conditions that might have violated the Eighth

Amendment.14   He has, therefore, failed to establish his Eighth

Amendment claim.15


14
  In taking Lovett’s assertions as true, we did not consider the
effect of the American Correctional Association Visiting
Committee Report for the USDB dated December 9, 1999 (ACA
Report), submitted by Lovett. While the ACA Report does reflect
noncompliance with ten of 424 applicable nonmandatory standards,
it also conveys a generally positive evaluation of the facility
and specifically reflects: 100% compliance with forty-one
mandatory standards; an acceptable agency response (building a
new USDB) to all ten findings of noncompliance with nonmandatory
standards; that the staff had a “positive attitude and exhibited
professionalism”; and that “[t]he overall security operation was
excellent.” Had we taken this submission from Lovett as true,
as we did the claims in his declarations, the conflict between

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United States v. Lovett, No. 03-0072/AF

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals on further review is affirmed.




Lovett’s own submissions would further enhance our conclusion
that he has not met his burden of showing an Eighth Amendment
violation in this case.
15
  In light of our conclusion that Lovett has failed to establish
his Eighth Amendment claim, we need not address whether Lovett
initiated or exhausted the prisoner grievance system and whether
his failure to file an Article 138, UCMJ, 10 U.S.C. § 938
(2000), complaint is excused under the circumstances of this
case.

                               14
