                       UNITED STATES, Appellee

                                    V.

                     Abdul K. ERBY, Airman Basic
                      U.S. Air Force, Appellant


                              No. 00-0550


                         Crim. App. No. 33282



       United States Court of Appeals for the Armed Forces

                        Argued January 9, 2001

                          Decided May 2, 2001

    GIERKE, J., delivered the opinion of the Court, in which
SULLIVAN, EFFRON, and BAKER, JJ., joined. SULLIVAN, J., filed a
concurring opinion. CRAWFORD, C.J., filed an opinion concurring
                 in part and dissenting in part.

                                 Counsel

For Appellant: Major Stephen P. Kelly (argued); Colonel James R.
   Wise and Lieutenant Colonel Timothy W. Murphy (on brief).

For Appellee: Captain Suzanne Sumner (argued); Colonel Anthony
   P. Dattilo and Major Lance B. Sigmon (on brief); Lieutenant
   Colonel Ronald A. Rodgers.

Military Judge:   J. Jeremiah Mahoney


    This opinion is subject to editorial correction before publication.
United States v. Erby, No. 00-0550/AF


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of two specifications

of larceny of government currency, in violation of Article 121,

Uniform Code of Military Justice, 10 USC § 921.      The adjudged and

approved sentence provides for a bad-conduct discharge and

confinement for 6 months.       The Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

      This Court granted review of the following issues:

                                        I

      WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN
      IT HELD THAT ARTICLE 66(C), UCMJ, 10 USC § 866(C), DID NOT
      GIVE THE COURT AUTHORITY TO REVIEW APPELLANT’S ASSIGNED
      ERROR CONCERNING THE CRUEL AND UNUSUAL PUNISHMENT HE
      SUFFERED AT THE HANDS OF DYESS AIR FORCE BASE CONFINEMENT
      FACILITY GUARDS.

                                        II

      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 CONFINEMENT
      FACILITY REPEATEDLY MISTREATED HIM AND OTHER CONFINEES AND
      PLACED HIM IN FEAR FOR HIS PERSONAL SAFETY.

For the reasons set out below, we set aside the lower court’s
opinion and remand for further action.

                            Factual Background

      On June 25, 1996, a general court-martial at Kadena Air

Force Base (AFB), Japan, convicted appellant of offenses

unrelated to this appeal.       Appellant’s approved sentence from the

Kadena court-martial included confinement for 3 years.      He was

confined at the Naval Consolidated Brig at Miramar, San Diego,

California.




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United States v. Erby, No. 00-0550/AF


      On April 7, 1998, a general court-martial at Dyess AFB,

Texas, convicted appellant of the offenses listed above.           At some

time before his trial at Dyess AFB, appellant was transferred

from Miramar to the Dyess AFB confinement facility.         His

treatment at Dyess AFB after his second court-martial is the

basis for the granted issues.

      Before the Court of Criminal Appeals, appellant asserted

that when he first arrived at the Dyess confinement facility, he

was forced to stand at attention for approximately 30 minutes

while his escorts were given a tour of the facility.         During his

in-processing, his personal belongings were “dumped and

inventoried.”     The guards continuously cursed at him and

threatened him.     He was forced to remove all his clothing and

stand at attention for 30 minutes while the guards “screamed,

cursed at, and ridiculed” him.          He was addressed as “you little

bitch.”

      Appellant asserted that during his first 72 hours of

confinement, while in administrative segregation, guards cursed

and screamed at him, called him “many humiliating names,” and

strewed his personal belongings “all over the area.”         He asserted

that he was awakened at 5:00 a.m. and not allowed to sleep until

9:00 p.m., and that on one occasion he was forced to remake his

bed “at least 10 times.”       Finally, appellant asserted that he and

other prisoners were forced to perform personal services for

inmate staff, forced to intimidate new inmates, subjected to

“shortened meals and showers,” subjected to “repeated comments of

a highly embarrassing and sexually explicit nature,” addressed as

“bitch,” and put in “fear that others would rape them.”           The


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United States v. Erby, No. 00-0550/AF


Government did not contest appellant’s allegation regarding the

fear of rape in its brief or at oral argument.

      The court below stated that it was “appalled by the

treatment alleged by this appellant.”          Unpub. op. at 2.   However,

it held that it had no authority to review appellant’s complaint

because the mistreatment was not a part of the approved sentence,

nor was it raised in appellant’s clemency request to the

convening authority.

                                 Discussion
      Appellant argues that the court below took an “unnecessarily

restrictive” view of its authority under Article 66(c), UCMJ, 10

USC § 866(c), to adjudicate claims of cruel and unusual

punishment.    He asserts that the “sadistic conduct” of the guards

at the Dyess AFB confinement facility “so offended contemporary

standards of decency that there is no doubt . . . [he] was

subjected to cruel and unusual punishment in violation of Article

55, UCMJ, and the Eighth Amendment.”          Final Brief at 5.

      The Government makes a three-pronged argument.         First, it

argues the court below correctly concluded that it lacked
jurisdiction to review appellant’s claims.          Second, it argues

that, even if the court below had jurisdiction, appellant failed

to exhaust his administrative remedies.          Finally, it argues that

appellant was not subjected to cruel and unusual punishment.

Answer to Final Brief at 2.

      This Court addressed the jurisdictional issue in United

States v. White, No. 00-0002, ___ MJ ____ (2001).          In White, we

expressly held that “we have jurisdiction under Article 67(c) to

determine on direct appeal if the adjudged and approved sentence


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United States v. Erby, No. 00-0550/AF


is being executed in a manner that offends the Eighth Amendment

or Article 55.”     ___ MJ (7).     We also held that our authority

under Article 67(c) “includes authority to ensure that the

severity of the adjudged and approved sentence has not been

unlawfully increased by prison officials[.]”           Id.

      In addition to its duty and authority to review sentence

appropriateness, a Court of Criminal Appeals also has the duty

and authority under Article 66(c) to determine whether the

sentence is correct “in law.”           This authority under Article 66(c)

is virtually identical to our Court’s authority to review the

sentence under Article 67(c).           Accordingly, we hold that the

Court of Criminal Appeals erred when it concluded that it lacked

authority to review appellant’s claims.

      In White, we found it unnecessary to remand the case to the
Court of Criminal Appeals because the facts asserted, even if

true, did not amount to a violation of Article 55 or the Eighth

Amendment.    Unlike White, we are unable to resolve this case on

the basis of appellant’s assertions.

      In the first place, we cannot determine if appellant
exhausted his administrative remedies.           It appears that appellant

may have arrived at Dyess AFB and undergone the initial in-

processing and administrative segregation mentioned in his

complaint before the court-martial convened.           Appellant did not

request relief from the military judge at his second court-

martial.    Appellate defense counsel informed this Court at oral

argument that appellant did not tell his defense counsel about

the conditions of his confinement.           Appellant states that he

complained to a chaplain, the confinement facility


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United States v. Erby, No. 00-0550/AF


superintendent, and his Congressman.            The record does not reflect

whether the facility commander or the convening authority was

aware of appellant’s complaints.            The record also does not

reflect whether appellant filed a complaint under Article 138,

UCMJ, 10 USC § 938, or the prisoner-grievance system.            We cannot

determine on this record whether any of these factors,

individually or in conjunction with other evidence, provides a

basis for deciding whether appellant exhausted available

remedies.

      In White, we found it unnecessary to determine if the
appellant exhausted his administrative remedies because the

alleged mistreatment did not amount to a violation of Article 55

or the Eighth Amendment.       See also United States v. Sanchez, 53

MJ 393 (2000) (verbal sexual harassment did not rise to level of

cruel and unusual punishment).          We cannot make that determination

in this case without further clarification of appellant’s

complaints.    For example, appellant states, “We were also

subjected to shortened meals and showers,” suggesting that some

inmates may have been deprived of food and basic hygienic needs,
but he provides no details and does not specifically claim that

he was deprived of food or hygienic needs.            Appellant also

asserts that the guards “made people fear that others would rape

them,” but he does not state whether he was threatened with rape

or whether he was forced to threaten other inmates with rape.           In

its brief and at oral argument, the Government did not contest

appellant’s allegations.       Government counsel conceded at oral

argument that appellant’s allegation regarding threats of rape

was susceptible of different interpretations, and it conceded


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United States v. Erby, No. 00-0550/AF


that further factfinding might be necessary to determine if

appellant’s fear of rape was only a generalized fear of rape or

the result of a specific threat by a guard or another prisoner.

      We cannot determine on this record whether appellant’s

mistreatment rose to the level of a violation of the Eighth

Amendment or Article 55.       Further factfinding is necessary to

determine if appellant’s fear of rape was merely the sort of

generalized fear that might prevail at any confinement facility,

if the fear of rape resulted from specific threats by the guards

or other prisoners to rape appellant, or if the guards were

deliberately indifferent to threats of rape or attempted rape

among the confinees.

                                  Decision
      The decision of the United States Air Force Court of

Criminal Appeals is set aside.          The record of trial is returned

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

Court of Criminal Appeals.       That court will conduct whatever

factfinding is required, including a hearing in accordance with

United States v. Ginn, 47 MJ 236 (1997), if necessary.         It will
determine whether appellant satisfied the requirement to exhaust

his administrative remedies, review the merits of appellant’s

claims under Article 66(c), and determine what relief, if any, is

appropriate.    Thereafter, Article 67 will apply.




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United States v. Erby, 00-0550/AF



    SULLIVAN, Judge (concurring):



    I am heartened that this Court has finally held in this case

and more recently in United States v. White, No. 00-0002, ___ MJ

___ (2001), that the lower courts have the duty and the

jurisdiction to review whether the sentence imposed by a court-

martial is being unlawfully increased by prison officials.   I

have for some time believed this to be true.   United States v.

Sanchez, 53 MJ 393, 397 (2000) (Sullivan, J., dissenting).
United States v. Erby, No. 00-0550/AF


CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

      I am concerned with cruel and unusual punishment and the

failure to prevent it.      Like the majority, I agree that this

Court has jurisdiction to examine allegations of cruel and

unusual punishment in violation of Article 55 when a case is on

direct appeal as to the adjudged and approved sentence.

However, I cannot concur with the majority insofar as they shift

the burden of proof to the Government to disprove an alleged

Article 55 violation, instead of placing the burden where it

should be, on the party who has allegedly been wronged.

      As the majority notes, appellant was no stranger to the

military justice system or incarceration.∗          On November 2, 1997,

5 months prior to appellant’s second general court-martial on

April 7, 1998, he was moved from confinement in San Diego and

entered confinement at Dyess Air Force Base, Texas.            Although

appellant’s affidavit is unclear, a fair reading of that

document, in conjunction with appellate defense counsel’s

pleadings and oral argument, indicates that the majority, if not

all, of the alleged aberrant behavior on the part of Dyess

prison guards ensued immediately following appellant’s arrival

at Dyess Air Force Base.



∗
  On June 25, 1996, appellant was convicted of 5 specifications of larceny and
10 specifications of falsely altering official documents to divert government
funds into his personal bank account.
United States v. Erby, No. 00-0550/AF


     During extenuation and mitigation at his April 7, 1998,

court-martial, appellant made no mention of the treatment which

he had received at the hands of the Dyess Air Force Base guards

for 5 months.   After the introduction of 35 different exhibits,

appellant’s mother testified on his behalf.   Appellant followed

this with an unsworn statement that he read to the Court.     In

particular, appellant informed the military judge of his past

court-martial and its associated sentence.    Notably, he said

that regarding the Joint Forces Brig, Camp Hanson, Okinawa,

Japan, where he was confined after his first court-martial, “The

Marines are in charge of this brig, and the time I spent there

was very hard.”

     After 5 months in the brig at Okinawa, he was transferred

to the Naval Consolidated Brig at Miramar.    Appellant related

how he had rehabilitated himself while serving confinement at

Miramar, and that he had been granted parole and was due to be

released on January 6, 1998.   However, before that happened, he

was transferred back to Dyess and had his parole revoked.    With

some bitterness, he informed the judge that “[a]fter all the

hard work and dedication to rehabilitate myself and get ...

parole, I lost it,” just to be court-martialed once again for

charges that were known of and “could have been taken care of

way back when I was originally charged and sentenced.”




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United States v. Erby, No. 00-0550/AF


     Although, as the majority notes, the record is unclear as

to when the alleged degrading conduct occurred, I am convinced

that any such maltreatment occurred prior to appellant’s April

7, 1998, court-martial.   By failing to raise this issue of

constitutional proportion at trial, or even in his submission

under RCM 1105, Manual for Courts-Martial, United States (2000

ed.), prior to the convening authority’s action on June 22,

1998, appellant has forfeited his right to complain in this

Court.   See generally, New York v. Hill, 528 U.S. 110 (2000);

Stewart v. LaGrand, 526 U.S. 115 (1999); cf. United States v.

Scalarone, 54 MJ 114, 119 (2000)(Crawford, C.J., dissenting).

     Remanding this case for a factfinding hearing under United

States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), perpetuates

the ad hoc remedy approach to these type of issues instead of

requiring an institutional or systemic remedy.   Although he

introduced 35 exhibits at his court-martial, appellant did not

introduce one shred of documentary evidence that he had

complained to any of the parties he said he did and it was these

parties who could have rectified mistreatment by the guards.

Furthermore, appellant’s affidavit does not name any of the

individuals to whom he allegedly complained.   As we have said on

a number of occasions, a person who requests relief from this

Court as a result of having suffered cruel and unusual

punishment must demonstrate an exhaustion of administrative

remedies before seeking judicial intervention.   United States v.
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United States v. Erby, No. 00-0550/AF


Avila, 53 MJ 99, 101 n.1 (2000); United States v. Miller, 46 MJ

248, 250 (1997).

     Certainly, appellant was aware of his ability to complain

to the Inspector General, since he referenced an Inspector

General report in his request for clemency after his first

general court-martial.   An examination of the exhibits appellant

submitted at his April 7, 1998, court-martial reinforces my

belief that he was well familiar with the prisoner-grievance

system and how to properly report and abate the misconduct of

which he complains.

     The burden of persuasion should be on the party with

knowledge of the abuse and the ability to show the

administrative actions taken to counter that abuse.   That burden

could have been met in this case by presenting appellant’s

letter to his Congressman and the reply thereto; the name of the

chaplain to whom he complained; the names of those guards who

cursed at and taunted him; the name of the guard who referred to

him as a “little bitch”; a written synopsis of appellant’s

conversation with the superintendent, Master Sergeant Callahan;

documentary evidence of his attempts to speak to his first

sergeant and commander; and interlocking affidavits from other

prisoners attesting to the conditions at Dyess Air Force Base.

Until such evidence is presented, appellant has neither stated a

colorable claim warranting a DuBay hearing nor demonstrated an


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United States v. Erby, No. 00-0550/AF


attempt to exhaust his administrative remedies.   Accordingly, I

would affirm the findings of guilt and sentence in this case.




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