United States v. Lovett , 63 M.J. 211 ( 2006 )

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an unpublished decision.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
2
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).
3
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).
4
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).
5
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).
6
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.”
7
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.
9
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 . . .
10
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
11
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
13
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