UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant JEFFREY R. ARNOLD
United States Army, Appellant

ARMY 20180418

Headquarters, III Corps and Fort Hood
G. Bret Batdorff, Military Judge
Colonel Joseph M. Fairfield, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Timothy G.
Burroughs, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Captain Christopher T. Leighton, JA
(on brief).

17 December 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

Sergeant Jeffrey R. Arnold contends that the conditions of his confinement
unlawfully increased his sentence. Specifically, that the confinement facility’s
policy regarding contact with his biological children violates his constitutional right
to association, and this violation effectively increased his sentence. We disagree.

A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of sexual assault of a child and one
specification of sexual abuse of a child, in violation of Article 120b, Uniform Code
of Military Justice, 10 U.S.C. § 920b [UCMJ]. The military judge sentenced
appellant to a dishonorable discharge, confinement for ten years, and reduction to
the grade of E-1. In accordance with a pretrial agreement, the convening authority
ARNOLD—ARMY 20180418

approved a sentence of a dishonorable discharge, confinement for seven years, and
reduction to the grade of E-1. The convening authority also credited appellant with
two days against his sentence to confinement. Appellant’s case is now before us for
review under Article 66, UCMJ.

BACKGROUND
The Offense

In 2016, AA, appellant’s daughter from a previous relationship, came to live
with appellant. She quickly became friends with the neighbors’ eleven-year-old
daughter, KP. The two girls spent a considerable amount of time together, to
include KP frequently spending the night at appellant’s house. On several occasions
while the two girls were laying on AA’s bed, appellant laid down next to KP and
touched her breast and genitalia over her clothing. Eventually, he touched her under
her clothing, to include penetrating KP’s vagina with his fingers. In total, appellant
molested KP with AA in the same room on several occasions.

Appellant pleaded guilty to sexually assaulting and sexually abusing KP on
multiple occasions. He admitted to the offenses and described how his daughter was
in the room, on the same bed, watching anime or movies while the assaults and
abuses occurred. Though appellant admitted his guilt and described his actions,
AA’s mother testified to appellant’s great parenting skills and proclaimed his
innocence.

Conditions of Confinement

On 29 August 2018, appellant began to serve his sentence to confinement at
the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas.
Pursuant to the JRCF policy on visitation and communication in effect at the time,
appellant was forbidden from having any contact with his daughters! upon his
arrival. Appellant requested an exception to the JRCF policy in September 2018 and
again in December 2018; both of which were denied. In June 2019, appellant
received permission from the JRCF to write letters to AA, with any further contact
conditioned on his showing progress on his sex offender treatment.”

 

' After appellant molested KP but before trial, appellant got married and had a
second daughter. Appellant’s younger daughter was approximately eight-months-old
when he first arrived at the JRCF.

? Appellant has sought sex offender treatment, but due to a waiting list for treatment,
he will not be able to begin or complete the treatment for several years.
ARNOLD—ARMY 20180418
LAW AND DISCUSSION

Appellant alleges that the JRCF visitation and communication policy
unlawfully increased his sentence in violation of his First Amendment right to
association.? We disagree with appellant’s contention.

Appellant urges us to look to the dissent in United States v. Jessie, No.
ARMY 20160187, 2018 CCA LEXIS 609 (Army Ct. Crim. App. 28 Dec. 2018), and
conclude that appellant’s sentence was unlawfully increased. This argument fails
because appellant’s case is distinguishable from Jessie in meaningful ways.

First, in Jessie, the visitation issue was intertwined with an excessive delay in
post-trial processing. 2018 CCA LEXIS 609, at *35-37 (Schasberger, J., dissenting).
Second, unlike in Jessie, where Chief Warrant Officer Two (CW2) Jessie’s
biological children were in no way involved in his crimes, that is not the case with
appellant. Jd. at 3-4 Though appellant’s daughter, AA, was not the charged victim
of his crimes, he perpetrated those crimes—that is sexually assaulting and sexually
abusing a child—in the same bed where his daughter was laying. Finally, CW2
Jessie went years with no contact with his biological children with no end in sight.
Id. at 4-5. By contrast, within nine months of incarceration, appellant was able to
send letters to AA.

There is no question that some right to association for prisoners survives
incarceration.* However, that right is not absolute. See generally Turner v. Safley,
482 U.S. 78 (1987). We apply the factors articulated in Turner to determine if a
prison policy is unconstitutional. Those factors are: “{1] whether the regulation has
a ‘valid, rational connection’ to a legitimate governmental interest; [2] whether
alternative means are open to inmates to exercise the asserted right; [3] what impact
an accommodation of the right would have on guards and inmates and prison
resources; and [4] whether there are ‘ready alternatives’ to the regulation.” Overton,
539 U.S. at 132 (quoting Turner, 482 U.S. at 89-91).

 

3 In his brief, appellant states his Fifth Amendment rights were also violated, but
does not provide a basis for the alleged violation. Accordingly, we find no merit in
appellant’s claim related to the alleged violation of his Fifth Amendment rights.

4 The Supreme Court addressed this issue in Overton v. Bazzetta, holding that though
“Ts]Jome curtailment of [the freedom of association] must be expected in the prison
context,” “[w]e do not hold, and we do not imply, that any right to intimate
association is altogether terminated by incarceration or is always irrelevant to claims
made by prisoners.” 539 U.S. 126, 131 (2003).
ARNOLD—ARMY 20180418

After considering the evidence provided by appellant in his submissions to the
convening authority and this court, we find the current JRCF policy satisfies the
Turner factors. Specifically, we find the ability to send letters is a sufficient
alternative to visitation, and rationally related to a legitimate governmental
objective. Accordingly, we find that a nine-month delay in contact with his daughter
did not increase appellant’s sentence.

CONCLUSION

Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

Senior Judge BROOKHART and Judge SALUSSOLIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES;
Clerk of Court
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BROOKHART, SALUSSOLIA, and SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant JEFFREY R. ARNOLD
United States Army, Appellant

ARMY 20180418

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 1, HEADQUARTERS, III
CORPS AND FORT HOOD, FORT HOOD, TEXAS 76544, dated 17 January 2019,

IS CORRECTED AS FOLLOWS:

BY reflecting “Charge I” as “The Charge” and by
reflecting the Plea to this charge as “Guilty.”

DATE: 17 December 2019

FOR THE COURT:

obo

MALCOLM H. SOUIR
Clerk of Court

  
 
 
