                         UNITED STATES, Appellee

                                         v.

                    Sabrina D. HARMAN, Specialist
                         U.S. Army, Appellant

                                  No. 08-0804
                         Crim. App. No. 20050597

       United States Court of Appeals for the Armed Forces

                         Argued October 14, 2009

                        Decided February 4, 2010

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.


                                     Counsel


For Appellant: Frank J. Spinner, Esq. (argued); Captain
Jennifer A. Parker (on brief); Major Grace M. Gallagher.

For Appellee: Captain Stephanie R. Cooper (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, and
Major Lynn I. Williams (on brief); Major Lisa L. Gumbs and Major
Teresa T. Phelps.

Military Judge:    James Pohl


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harman, No. 08-0804/AR


     Judge STUCKY delivered the opinion of the Court.

     Appellant, an Army reservist assigned as a guard at Abu

Ghraib prison in Iraq in 2003, was convicted of various offenses

concerning the maltreatment of detainees.   We granted review to

consider whether the evidence is legally sufficient to sustain

the findings of guilty.   For the reasons that follow, we find no

error and affirm.

                                I.

     Contrary to her pleas, Appellant was convicted at a general

court-martial, with officer and enlisted members, of conspiracy

to maltreat subordinates; dereliction of duty by failing to

protect Iraqi detainees from abuse, cruelty, and maltreatment;

and four specifications of maltreatment under Articles 81, 92,

and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

881, 892, 893 (2006).   Appellant was sentenced to a bad-conduct

discharge, confinement for six months, forfeiture of all pay and

allowances, and reduction to E-1.    The convening authority

approved the sentence, with slight modifications to the

forfeitures and confinement credits.   The United States Army

Court of Criminal Appeals (CCA) affirmed.   United States v.

Harman, 66 M.J. 710, 720 (A. Ct. Crim. App. 2008).

     Appellant’s convictions stem from incidents at Abu Ghraib

prison in Iraq where she served as a guard in the fall of 2003.




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The first incident took place on November 4, 2003.1   Appellant

admitted to investigators that she took a new detainee, who had

been placed on a box with a hood over his head, affixed his

fingers with wires, and told him he would be electrocuted if he

fell off the box.   Appellant then photographed the victim who

stood on the box for approximately an hour.   Appellant admitted

it was her idea to attach these wires, though military

intelligence officials had not asked her or her colleagues to do

so.   Appellant thought this was permissible because “[w]e were

not hurting him.    It was not anything that bad.”

      On November 7, 2003, more detainees were securely

transferred to Appellant’s area with handcuffs and sandbags over

their heads so they could pose no harm.   Other soldiers took it

upon themselves to “discipline” the detainees by taking the

detainees’ clothes off and forcing them into a human pyramid,

stepping on their hands and toes, and punching a hooded detainee

so hard that he needed medical treatment.   Appellant admitted in

her sworn statement that she observed what was taking place,

retrieved her digital camera, and returned to join the soldiers.

Once there, she took numerous pictures, wrote “I’m a rapeist

[sic]” on a detainee’s naked thigh, and posed in front of the

nude pyramid of detainees while smiling and giving a “thumbs up”


1
  Appellant was acquitted of another charge arising from an
earlier incident on October 25, 2003.

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United States v. Harman, No. 08-0804/AR


sign.    Appellant’s colleagues described their collective mood as

“[j]ust laughing and joking.”    Another servicemember reported

the abuse.    Later, Appellant told an investigator “I don’t think

the human pyramid was wrong, nor [my colleague] posing like he

was going to hit the prisoner.”    But she also acknowledged that

she was “sure it hurt” to be subject to these measures.

Appellant did not report any of these incidents, although she

had earlier expressed mixed feelings about mistreatment of

detainees.2    Two soldiers reported some of these incidents, and

on January 12, 2004, one of them turned over digital images of

the incidents.

                                  II.

        This Court reviews questions of legal sufficiency de novo

as a matter of law.    United States v. Wilcox, 66 M.J. 442, 446

(C.A.A.F. 2008).    The test for legal sufficiency is “‘whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

United States v. Mack, 65 M.J. 108, 114 (C.A.A.F. 2007) (quoting



2
  In an October 20, 2003, letter to a former roommate, Appellant
claimed she first thought such incidents were “funny then it hit
me, that’s a form of molestation. You can’t do that.” She
added that “[t]he only reason I want to be there is to get the
pictures to prove the US is not what they think. . . . What if
that was me in their shoes. . . . Both sides of me think it’s
wrong.”

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Jackson v. Virginia, 443 U.S. 307, 319 (1979)).       We affirm the

decision of the lower court.

                          A.   Conspiracy

     Appellant argues that her conspiracy conviction was legally

insufficient because she had no intent to conspire and because

intent cannot be inferred from her “thumbs up” sign.      Under

Article 81, UCMJ, conspiracy requires:      “‘(1) That the accused

entered into an agreement with one or more persons to commit an

offense under the code; and (2) That, while the agreement

continued to exist, and while the accused remained a party to

the agreement, the accused or at least one of the co-

conspirators performed an overt act for the purpose of bringing

about the object of the conspiracy.’”      United States v. Whitten,

56 M.J. 234, 236 (C.A.A.F. 2002) (quoting Manual for Courts-

Martial, United States pt. IV, para. 5.b (2000 ed.) (MCM)).

Conspiracy “need not be in any particular form or manifested in

any formal words,” rather “[i]t is sufficient if the agreement

is ‘merely a mutual understanding among the parties.’”      Mack, 65

M.J. at 114 (citations omitted).       “The existence of a conspiracy

may be established by circumstantial evidence, including

reasonable inferences derived from the conduct of the parties

themselves.”   Id. (citations omitted).

     Appellant’s conduct is legally sufficient for a conspiracy

conviction because she actively participated in the abuse and


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encouraged others to do so.   As the CCA rightly concluded,

Appellant’s “smiling face, when seen with the ‘thumbs up’ hand

signals, shows approval and encouragement to her co-conspirators

as they maltreated the prisoners.     An inference that she was

joining their purpose is justified.”    Harman, 66 M.J. at 715.

Furthermore, Appellant freely chose to participate in abuse and,

in fact, voluntarily left to retrieve her camera so she could

return to join and photograph the abuse.    Appellant’s previous

letter to her roommate did not alter the intent manifested

during the course of the abuse.   Her direct involvement and

obvious approbation, combined with her jokes and failure to stop

or report the abuse, further support a “reasonable inference[]”

of conspiracy “derived from the conduct of the parties

themselves.”   Mack, 65 M.J. at 114 (citations omitted).

                      B.   Dereliction of Duty

     Appellant was convicted of dereliction of duty for failing

to perform her duty to protect Iraqi detainees from abuse,

cruelty, and maltreatment, in violation of Article 92, UCMJ.

Appellant now argues those convictions were legally insufficient

and emphasizes that she was not properly trained.    Willful

dereliction of duty requires:   “‘(a) That the accused had

certain duties; (b) That the accused knew or reasonably should

have known of the duties; and (c) That the accused was willfully

derelict in the performance of those duties.’”    United States v.


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United States v. Harman, No. 08-0804/AR


Pacheco, 56 M.J. 1, 3 (C.A.A.F. 2001) (quoting MCM pt. IV, para.

16.b.(3)).

     Appellant’s participation goes beyond mere acquiescence or

negligent dereliction of duty:     she actively and willingly

participated in attaching wires to a detainee, writing “rapeist”

on a detainee’s naked thigh, taking photos, and encouraging

others’ abuse.   Appellant received training in the care, custody

and control of detainees as well as in the basic requirements of

the Geneva Conventions regarding their treatment.       Appellant

does not allege that she was unaware of her fundamental duty to

care for and protect detainees.3       Appellant did not require

specialized training to know that her actions were wrong, as

evidenced by her own admissions as well as her colleagues’

decisions to report the abuses.    Appellant failed in her duty to

protect the detainees, and her conviction was legally

sufficient.

                         C.   Maltreatment

     Appellant was convicted of four specifications of

maltreatment for photographing, placing electrodes on, and




3
  Appellant’s letter to her roommate, supra note 2, shows she
appreciated the wrongfulness of her misconduct. The letter also
undermines Appellant’s simultaneous arguments that she was
untrained to recognize maltreatment and that she was really just
trying to document and stop abuse.

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United States v. Harman, No. 08-0804/AR


writing “rapeist” on detainees, in violation of Article 93,

UCMJ.    Appellant argues that no detainee suffered harm from her

actions since none of them was aware of her photographs or felt

pain from the wires.    Maltreatment requires:    “(1) That a

certain person was subject to the orders of the accused; and (2)

That the accused was cruel toward, or oppressed, or maltreated

that person.”    United States v. Springer, 58 M.J. 164, 171

(C.A.A.F. 2003) (quoting MCM pt. IV, para. 17.b.).      Unlike in

United States v. Smith, __ M.J. __ (C.A.A.F. 2010), Appellant

does not assert that the detainees were not subject to her

orders.    There is “no need to show actual harm, rather ‘it is

only necessary to show, as measured from an objective viewpoint

in light of the totality of the circumstances, that the

accused’s action reasonably could have caused physical or mental

harm or suffering.’”    Id. at 171-72 (quoting United States v.

Carson, 57 M.J. 410, 415 (C.A.A.F. 2002)).

        In this case, the objective standard of harm is met for all

four specifications:    as the CCA correctly found, “[n]o

reasonable detainee would want to be abused and, more

importantly here, would wish his abusers to record this

pointless, humiliating conduct.”       Harman, 66 M.J. at 717.   At

least one detainee was aware he was being photographed at the

time of the incidents.    It was reasonable for the military judge

to find that one detainee would have feared electrocution when


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United States v. Harman, No. 08-0804/AR


guards explicitly told him he would be electrocuted if he fell

off the box, irrespective of whether the wires were actually

electrified.   It is similarly reasonable that the military judge

concluded another detainee would suffer from having “rapeist”

capriciously written on his leg while lying partially naked,

hooded, and bound.   Appellant’s convictions were legally

sufficient.

                               III.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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