

   
   
   
   U.S. v. Sanchez



United States, Appellee
v.
Cara R. SANCHEZ, Airman First Class
U.S. Air Force, Appellant
 
No. 99-0761
Crim. App. No. 33117
 
United States Court of Appeals for the Armed
Forces
Argued March 1, 2000
Decided August 30, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. GIERKE,
J., filed a concurring opinion. SULLIVAN, J., filed a dissenting opinion.
Counsel
For Appellant: Major Stephen P. Kelly
(argued); Colonel Jeanne M. Rueth (on brief); Lieutenant Colonel
Ray T. Blank,Jr.
For Appellee: Captain Christa S. Cothrel
(argued); Colonel Anthony P. Dattilo and Lieutenant Colonel Ronald
A. Rodgers (on brief); Major Jennifer R. Rider.
Military Judge: Mary M. Boone
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION.


Senior Judge COX delivered the opinion
of the Court.
The sole issue before this court is
whether appellant was subjected to cruel and unusual punishment in violation
of her rights under the Eighth Amendment and Article 55 of the Uniform
Code of Military Justice, 10 USC § 855, while confined at the Naval
Consolidated Brig Miramar, San Diego. Specifically, we granted review of:

WHETHER APPELLANT WAS SUBJECTED TO
CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH
AMENDMENT AND ARTICLE 55 OF THE UCMJ
WHEN GUARDS
AT THE MILITARY CONFINEMNT FACILITY
REPEATEDLY
SEXUALLY HARASSED HER.

The Court of Criminal Appeals affirmed
the findings and the sentence in an unpublished opinion.

FACTUAL BACKGROUND
In August of 1997, appellant loaned
her car to her ex-husband to travel to California. Once he arrived, appellant
told him that she planned to report the car as stolen. Appellant and a
senior airman manufactured a cover story to the effect that the car had
been stolen, and then filed the necessary reports and claims. The car was
later found in California at the home of a family friend of appellant.
Subsequently, appellant was arrested
on charges stemming from this incident. On December 4, 1997, a military
judge sitting alone convicted appellant, pursuant to her pleas, of four
larceny-related charges.1
He sentenced her to be reduced to the grade of airman basic, 1 year of
confinement, and a bad-conduct discharge. Consistent with her plea agreement,
the convening authority approved the sentence but waived the automatic
forfeitures for 6 months for the benefit of her dependent children.
During her confinement at the brig, from December
30, 1997, until June 9, 1998, it is undisputed that she was the victim
of ongoing verbal sexual harassment.
According to appellants various statements,
it seems she told someone at the brig about some of the harassment, yet
it continued. Later, she asked another supervisor to take her off the trash
detail she had with one of the inmates who harassed her, but did not say
why. From appellants statements, it seems that she might have told several
more individuals at the brig, but asked them not to do anything out of
fear of retaliation. Finally, at her parole outbriefing in June of 1998,
she told the commanding officer about the harassment, but once again asked
that no action be taken until after she left.
Appellant then filed a formal complaint. In
her complaint, appellant detailed at least ten separate incidents when
military guards or other inmates said inappropriate sexual things to her,
or asked her inappropriate sexual questions. However, according to appellant,
the men never touched or otherwise harmed her. Based on her complaint,
the Navy conducted an internal investigation and determined that appellant
had indeed been harassed while at the facility. The Navy then initiated
disciplinary proceedings against the military staff involved.
Appellant now claims that this situation kept
her in a constant state of humiliation, discomfort, fear, and pain (emotional),
and that because of this treatment while confined, she was the victim of
cruel and unusual punishment. She asks this court to "find a violation
of the Eighth Amendment for sexual harassment and grant appropriate relief."
Final Brief at 8.
We find the harassment appellant suffered,
while indefensible, did not rise to the level of cruel and unusual punishment
as contemplated by the Eighth Amendment and Article 55 of the UCMJ. We
affirm the findings of the lower court.

DISCUSSION
While appellant endured inexcusable behavior
during her confinement, it did not rise to the level of cruel and
unusual punishment as contemplated by the Eighth Amendment and Article
55 of the UCMJ. We conclude that verbal sexual harassment
at the level appellant suffered is insufficient to establish conduct amounting
to cruel and unusual punishment. Further, the record does not establish
the requisite state of mind for an Eighth Amendment violation.

CONDUCT AMOUNTING TO CRUEL AND UNUSUAL PUNISHMENT
In Estelle v. Gamble, 429 U.S. 97 (1976),
the Supreme Court said that the framers' intent behind the Eighth Amendment
was to prevent barbaric and torturous forms of punishment. In more recent
history, the standard for what constitutes cruel and unusual punishment
has developed into more than just pure physical torture. Instead, the current
standard is that the Eighth Amendment prohibits "punishments which 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[.]" Id. at 102-03 (citations omitted).
In Farmer v. Brennan, 511 U.S. 825 (1994),
the Supreme Court defined two factors that are necessary for an Eighth
Amendment claim to succeed regarding conditions of confinement. First,
there is an objective component where an act or omission must result in
the denial of necessities and is "objectively, sufficiently serious."
Id.
at 834, quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). The
second component is subjective, testing for a culpable state of mind. "In
prison conditions cases that state of mind is one of deliberate indifference
to inmate health or safety." Id., quoting Wilson, supra
at 302-03.2
We agree with the Court of Criminal Appeals
and the conclusions of the Second and Tenth Circuit Courts of Appeals that
sexual harassment may, in some circumstances, rise to the level of cruel
and unusual punishment. However, although the sexual harassment in this
case was unacceptable, appellant has failed to demonstrate, "as an objective
matter, that the alleged abuse or harassment caused 'pain.'" Unpub. op.
at 5, quoting Freitas v. Ault, 109 F.3d 1335, 1339 (8th
Cir. 1997).
In the Freitas case, the Eighth Circuit
determined that sexual harassment or abuse of an inmate by a guard sometimes
might rise to the level of "wanton and unnecessary infliction of pain"
and in those cases may therefore give rise to an Eighth Amendment claim.
Still:

[t]o prevail on a constitutional claim of
sexual harassment, an inmate must . . . prove, as an
objective matter, that the alleged abuse or
harassment caused pain and, as a subjective
matter, that the officer in question acted
with
a sufficiently culpable state of mind.

Freitas, supra at 1338, citing Hudson
v. McMillian, 503 U.S. 1, 8 (1992). Although the typical Eighth Amendment
violation is found where prisoners are denied adequate medical attention
or food3 -- a denial of
basic human necessities,4
-- Justice Blackmans separate opinion in Hudson, supra at
16, suggests that psychological pain might be actionable under the Eighth
Amendment. Still, it seems that any such claim would have to be a well-established
and clinically diagnosed anxiety or depression. Id. at 16-17.Appellants
"pain" does not meet this standard.
Appellant argues that she suffered "pain" consistent
with Eighth Amendment cruel and unusual standards. This, she contends,
is demonstrated by the fact that she cried about the situation to her counselor
and because she suffered from great fear of the guards because of their
position of control over her. Further, she maintains that the "barrage
of harassment inflicted pain on her." Final Brief at 3. She does not allege
and she has not presented evidence of physical harm or clinically documented
psychological trauma.5
Even under the most flexible "pain" standard, appellants situation does
not rise to the level of cruel and unusual punishment in the legal sense.

STATE OF MIND
The culpable state of mind component is also
not present in appellants case. Here, there is no evidence of a deliberate
indifference to her fear and pain necessary to an Eighth Amendment violation.
Under the standard in Farmer, supra,
the prison guards and officials must be consciously aware of the risk ordanger
to the inmate and choose to ignore it; they must have been aware of the
harm or risk of harm caused appellant, and continued anyway. In the instant
case, appellant did not tell the guards, much less their supervisors, that
she was being offended and harassed by other inmates. Therefore, there
was no knowledge and disregard of appellants situation as a condition
of her confinement, as required under the "deliberate indifference" standard.
Without it, she could not have suffered cruel and unusual punishment under
the Eighth Amendment.
Appellant argues that although she never said
anything to the guards directly, because sexual harassment cases
are so prevalent in todays society, they should have known the profound
effect their actions would have on her.
The Farmer Court rejected a similar
argument,6 holding that
"the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must
also draw the inference." 511 U.S. at 837 (emphasis added). Similarly,
here, we must reject appellants claim and find that the prison guards
and officials did not have the requisite culpable state of mind.
Appellant further contends that when she did
notify officials at the confinement facility of the harassment, they did
nothing to prevent its continuation, thereby "reflect[ing] they were deliberately
indifferent to Appellants rights." Final Brief at 4. It is unclear from
appellants posttrial statements and assertions whether, before filing
a report with the commanding officer at out-processing, she reported the
situation to the appropriate persons and who exactly those persons
might have been.7 However,
what is clear is that when she reported it to a person of real authority,
the commanding officer, he did not have the culpable state of mind. This
is evidenced
particularly by the fact that as soon as he
became aware of the situation, he instituted a full investigation.

CONCLUSION
The decision of the United States Air Force
Court of Criminal Appeals is therefore affirmed.
FOOTNOTES:
1 Appellant
was charged with and found guilty of: (1) attempting to steal $10,000 from
Allstate Insurance Company by filing a false insurance claim stating her
car was stolen, when she knew it was not stolen, in violation of Article
80, Uniform Code of Military Justice, 10 USC § 880; (2) conspiring
with another airman to steal $20,000 from Allstate Insurance Company by
filing false insurance claims for car theft and personal property, in violation
of Article 81, UCMJ, 10 USC § 881; (3) making false statements to
Special Agents of the Air Force Office of Special Investigations to the
effect that her car had been stolen, when she knew it had not been stolen,
in violation of Article 107, UCMJ, 10 USC § 907; and (4) wrongfully
obtaining a rental car valued at $439.73 from Allstate Insurance Company
by pretending to that company that her car was stolen, in violation of
Article 134, UCMJ, 10 USC § 934.
2Wilson
extended the deliberate indifference standard from medical necessity cases
to prison conditions cases. Sexual harassment while in prison is a condition
of confinement issue under Eighth Amendment analysis. See, e.g.,
Freitas
v. Ault, 109 F.3d 1335,1338 (8th Cir. 1997);
Thomas v.
District of Columbia, 887 F.Supp 1 (D.D.C. 1995); Boddie v. Schnieder,
105 F.3d 857 (2d Cir. 1997); Adkins v. Rodriguez, 59 F.3d 1034 (10th
Cir. 1995).
3See,
e.g.,
Estelle v. Gamble, 429 U.S. 97 (1976);
Farmer v. Brennan,
511 U.S. 825 (1994); Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
(citing Hutto v. Finney, 437 U.S. 678 (1978)).
4
See Farmer, supra at 832, where the Court speaks to the necessity
for humane prison conditions, and at 847, where it states that "a prison
official may be held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it."
5
In Boddie, supra at n.2, where an inmate was actually touched
and grabbed, still this was not enough to constitute a violation of his
Eighth Amendment rights. In Adkins, supra at n.2, where there
were solely sexual verbal comments, there was also no violation found.
That inmate argued that implicit to the verbal harassment was a threat
tantamount to assault, i.e., "force." The court disagreed.
6
In that case, petitioner urged the Court to hold that "a prison official
is deliberately indifferent if he 'knew facts which rendered an unreasonable
risk obvious; under such circumstances, the defendant should have known
of the risk and will be charged with such knowledge as a matter of law.'"
Farmer,
511 U.S. at 837 n.5.
7These
facts are unclear based on the totality of her statements and pleadings
to this Court. For example, regarding the first time (presumably) she told
someone of the harassment, her statement reads that she "felt uncomfortable
and reported this situation [with the prison guard] to my quarter supervisor
Petty Officer McDonald and CDO Msgt Roman." Later in the same statement,
appellant states:
I've been
harassed by male inmates since Ive been here
and my case manager
and LCPO have minimized the situations.
So I knew if I
came to them about a staff it might be handled the same way....I felt I
had no access to the commander except through a voluntary and then everyone
would know."
Appellants other statements
read side-by-side do not paint a clear picture because they are equally
inconsistent.


GIERKE, Judge (concurring):
I agree with the majoritys decision
on the merits of the granted issue. I write separately to address the question
of jurisdiction, which the Government asserts is "a matter of considerable
debate." Answer to Final Brief at 3.
By deciding the merits of the
issue, this Court has sub silentio asserted its jurisdiction.
Unlike Clinton v. Goldsmith, 526 U.S. 529 (1999), this case does
not involve our authority under the All Writs Act, nor does it involve
the collateral consequences of a court-martial sentence. This case is before
us on direct review of an issue whether the sentence is being executed
in a manner that increases its severity to the extent that it violates
the Eighth Amendment and Article 55. Thus, in my view, this Court is well
within its jurisdiction under Article 67(c), UCMJ, 10 USC § 867(c),
to act "with respect to the findings and sentence as approved by the convening
authority and as affirmed . . . by the Court of Criminal Appeals."


SULLIVAN, Judge (dissenting):

JURISDICTION
I disagree with the appellate
court below that it had no jurisdiction to entertain appellants claim
for
sentence relief based on her post-trial sexual harassment by her prison
guards. See generally Walker v. United States, 19
USCMA 247, 251, 41 CMR 247, 251 (1970) (Court of Military Review may take
violations of law concerning conditions of confinement during appellate
review into account in its determination of an appropriate sentence); see
also United States v. Miller, 46 MJ 248, 250 (1997). The
Supreme Courts decision in Clinton v. Goldsmith, 526 U.S. 529 (1999),
does not render military appellate courts impotent in this regard. In my
view, Article 55, UCMJ, makes unlawful post-trial punishment a matter of
law related to "the review of specified sentences imposed by courts-martial"
under Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867. Id.
at 534; see also Article 71(c)(2), UCMJ, 10 USC § 871(c)(2)
(execution of sentence).
Article 55, UCMJ, expressly authorizes
more than review of sentences adjudged by a court-martial. It states:



§ 855. Art. 55. Cruel
and unusual punishments prohibited
Punishment by flogging, or by
branding, marking, or tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a court-martial or inflicted
upon any person subject to this chapter. The use of irons, single or
double, except for the purpose of safe custody, is prohibited.



(Emphasis added.) Sexual harassment
is not a lawful punishment under our Code, nor was it adjudged as punishment
by appellants court-martial. The "infliction" of such punishment on a
military prisoner by prison guards, over and above that adjudged by the
court-martial, is unquestionably a matter of codal concern. SeeClinton
v. Goldsmith, supra at 536 ("It would presumably be an entirely
different matter if a military authority attempted to alter a judgment
by revising a court-martial finding and sentence to increase the punishment,
contrary to specific provisions of the UCMJ . . . .").
The federal district courts remain
open for the military prisoners to present claims for injunctive, declaratory,
or habeas relief based on unlawful post-trial confinement conditions. See
Walden v. Bartlett, 840 F.2d 771, 775 (10th Cir. 1988), and Marrie
v. Nickels, 70 F.Supp.2d 1252, 1259-60 (D. Kan. 1999). Claims for monetary
damages, however, are barred by the Feres doctrine. Id. at
1261. Nevertheless, our unique military justice system permits convicted
servicemembers to make claims on direct appeal for judicial sentence relief
based on unlawful post-trial punishment. Walker v. United States,
supra.
Resort to this military legal remedy, prior to seeking relief in the federal
district court, is not only authorized but appropriate.
See generally
Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) ("But implicit
in the congressional scheme embodied in the Code is the view that the military
court system generally is adequate to and responsibly will perform its
assigned task. We think this congressional judgment must be respected and
that it must be assumed that the military court system will vindicate servicemens
[or womens] constitutional rights.").

REQUIRED PREJUDICE
I also disagree with the majority
of this Court that "verbal sexual harassment at the level appellant suffered
is insufficient to establish conduct amounting to cruel and unusual punishment"
under the Eighth Amendment and Article 55, UCMJ. __ MJ (6). It opines
that "clinically documented psychological trauma" such as "diagnosed anxiety
or depression" must be shown and was neither alleged or proven in this
case. Id. at (9). In my view, appellant has made a prima
facie case of sufficient pain required by the Eighth Amendment and Article
55, UCMJ, and a hearing under United States v. DuBay, 17 USCMA 147,
37 CMR 411 (1967), is warranted on this issue if contested by the Government.
In this regard, I note that appellants
claims of sexual harassment were investigated by the Commanding Officer,
Naval Consolidated Brig Miramar and found to be corroborated. See
Appendix A and B. I see no reason at this stage of the proceedings to doubt
her unrebutted assertions that she suffered pain as a result of
this misconduct by her prison guards. Cf. Freitas v. Ault,
109 F.3d 1335, 1337 (8th Cir. 1997) (factual dispute concerning existence
of pain resolved in Governments favor). I also note that her allegations
covered an extended period of time in the brig, and she particularly averred
this misconduct placed her in a constant state of "humiliation," "discomfort,"
"fear," and "emotional" pain. In my view, she has alleged and proven legally
cognizable pain, i.e., pain beyond "routine discomfort [which] is
part of the penalty that criminal offenders pay for their offenses against
society." Hudson v. McMillian, 503 U.S. 1, 9 (1992). Nothing said
by Justice Blackman in his separate opinion in Hudson justifies
dismissing this claim at this point in time.

INTENT TO PUNISH
I must also disagree with the
majoritys rejection of appellants post-trial punishment claim because
it "find[s] that the prison guards and officials did not have the requisite
culpable state of mind." ___ MJ (9-10). In particular, it asserts
"[i]n the instant case, appellant did not tell the guards, much less their
supervisors, that she was being offended and harassed by other inmates."
Id.
at (9). It is on this basis that the majority concludes she has
not shown that "the prison guards and officials [were] consciously aware
of the risk or danger to the inmate and cho[]se to ignore it . . . ." Id.
at (8-9);
see Farmer v. Brennan, 511 U.S. 825 (1994).
Appellants complaint in this
case was that she was sexually harassed by her prison guards. Moreover,
the commanding officer of the brig found that these complaints were corroborated
and acknowledged her sexual harassment at his facility. To factually find
that these prison guards were not "deliberately indifferent" in these circumstances
not only exceeds the powers of this Court, but it is counterintuitive.
Article 67, UCMJ.
This is an unusual case where
appellants complaint of sexual harassment by prison guards was acknowledged
by prison authorities and was not factually disputed by the Government.
I am unwilling to reject a sentence reduction argument based on this acknowledged
misconduct for the reasons touted by the majority. In addition, appellant
has served her confinement. Accordingly, I would order a DuBay hearing
which would permit the Government opportunity to factually dispute appellants
unlawful punishment claim and, if it does not, permit the military judge
or Court of Criminal Appeals to fashion appropriate sentence relief with
respect to the remainder of her sentence.


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