United States v. Springer , 58 M.J. 164 ( 2003 )

UNITED STATES, Appellee
v.
James E. SPRINGER, Staff Sergeant
U.S. Air Force, Appellant
No. 02-0237
Crim. App. No. S29803
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued December 10, 2002
Decided March 21, 2003
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and ERDMANN, JJ., joined.
Counsel
For Appellant: David E. Wheeler, Esq. (argued); Colonel
Beverly B. Knott, Major Maria A. Fried, Major Terry L.
McElyea, and Major Jeffrey A. Vires (on brief).
For Appellee: Captain Steven R. Kaufman (argued);
Lieutenant Colonel LeEllen Coacher, Lieutenant Colonel
Lance B. Sigmon and Major Linette Romer (on brief);
Colonel Anthony P. Dattilo.
Military Judge: Kurt Schuman
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Springer, 02-0237/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a special court-martial.
Contrary to his pleas, he was found guilty of two
specifications under Article 92, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. § 892 (2002), for
providing alcohol to a trainee and for making sexual
advances toward a trainee. He was also convicted of two
specifications of maltreatment under Article 93, UCMJ, 10
U.S.C. § 893 (2002), based on physical body searches that
he performed on female trainees. The adjudged and approved
sentence was a bad-conduct discharge and reduction to the
lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence. United States v.
Springer, ACM S29803 (A.F. Ct. Crim. App. Oct. 25, 2001).
We granted review on the following issues:
I
WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S
MOTION TO SUPPRESS INFORMATION UNLAWFULLY OBTAINED WHEN
APPELLANT’S SEALED LETTER WAS REMOVED FROM A DESIGNATED
PLACE FOR OUTGOING MAIL AND ITS CONTENTS EXAMINED.
II
WHETHER CHARGE II IS LEGALLY INSUFFICIENT BECAUSE
APPELLANT’S CONDUCT DID NOT CONSTITUTE CRUELTY OR
MALTREATMENT AS INTENDED BY ARTICLE 93.
For the reasons stated below we affirm.
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Issue I: Appellant’s letter
A. Facts
Appellant was a Combat Skills Course instructor at
Lackland Air Force Base (AFB) and at Camp Bullis, both in
San Antonio, Texas. Among other duties, Appellant served
as a primary instructor for trainee squads attending the
Security Officers Apprentice Course at Camp Bullis, a
twenty-one day course of instruction in combat arms for
military policemen. Camp Bullis is an “austere” Army post
located 16-18 miles north of Lackland AFB. There were no
formal mail facilities at Camp Bullis at the time of the
events at issue. As a result, trainees would leave their
mail at a front office desk within the dormitory building
where the military training leader collected it and
delivered it to Lackland AFB.
Between the summer and November of 1998, Staff
Sergeant (SSgt) Payne, a non-commissioned officer (NCO)
assigned to the front office, noticed Appellant’s name as
the return addressee on a letter as he was flipping through
the outgoing mail. SSgt Payne testified that it was his
practice to flip through the mail in the morning to ensure
that students had placed postage and return addresses on
outgoing mail. He had no official duty to do so, but did
so “out of kindness” to help the airmen and to prevent
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their mail from being returned. Specifically, SSgt Payne
testified that he was
[j]ust checking to make sure that the envelopes that
were there had stamps and return addresses on there
and placing them in the window . . . . [N]ormally
students are rushed in the morning. They are in a
hurry to get out – get out to formation, otherwise,
they get in trouble for being late to formation. And
a lot of times, they will just throw an envelope on
there with nothing on it to mail it – just forgetting
to put a stamp or forgetting to put an address on it .
. . . [T]hat’s when I saw Sergeant Springer’s name on
the envelope, and I thought that it was kind of
peculiar . . . . I thought it was kind of peculiar for
NCOs and instructors to be mailing something from the
office . . . . [W]hen I saw it was his name, I looked
at the student’s name. I recognized the student’s
name as being a previous student. And then at that
time, Sergeant Rodriguez walked in, and I said
something to him.
SSgt Payne described his reaction as one of “shock and
amusement because it was – it was the strict policy of the
squadron and of [Air Education and Training Command] is
absolutely no contact and absolutely no relations at all,
and it was quite an amazing – you know, it was like, wow,
this is kind of silly to be doing this.” Master Sergeant
[MSgt] Daryl Leboeuf, Appellant’s supervising Senior Staff
NCO at Camp Bullis, stated: “[I]ndividuals got briefed on
personal relationship policy a minimum of once a month,
sometimes more . . . . [T]here will be no personal
relationships with the airmen. Trainees are a non-issue. .
. . Sergeant Springer was aware of that.”
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With respect to the contents of the letter, SSgt Payne
testified that “once you turned the envelope over, you
could see through the back of the envelope, and you could
see a picture that was drawn.” (Emphasis added.) SSgt
Payne did not testify as to the nature of the “picture.”
However, Appellant’s motion to suppress states that the
picture depicted a heart with two extended arms saying, “I
love you this much.”
SSgts Payne and Rodriguez subsequently encountered
SSgt Stephanie Schaaf and told her about the letter. She
then went back to the dormitory and examined the letter in
the same manner as SSgt Payne had done. When later
questioned by Ms. Catherine Jeffryes, a Security Forces
investigator, SSgt Schaaf told the investigator that she
saw the words, “I love you BeBe” inside the letter and that
it was written to a former trainee with a Hispanic last
name. When Ms. Jeffryes interviewed Appellant and asked
about the letter, he admitted to having written Airman
First Class (A1C) Mendez (now Humphries). Ms. Jeffryes
also testified that “but for” information from SSgt Schaaf,
she would not have asked Appellant about A1C Humphries.
Subsequently defense counsel moved to suppress the
contents of the letter and A1C Humphries’ testimony as
evidence derived from it. On appeal, Appellant argues that
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he had a reasonable expectation of privacy in his
correspondence to A1C Humphries that was violated when
SSGTs Payne and Schaaf viewed the outside of the envelope
and saw both the return address and subsequently the
internal contents described above. As a result, any
testimony regarding the contents of the letter as well as
A1C Humphries’ testimony should have been suppressed as
fruit of an unlawful search.
B. Discussion
We review a military judge's decision to admit
evidence for abuse of discretion. If the military judge
makes findings of fact, we review the findings under a
clearly erroneous standard of review. We review
conclusions of law de novo. United States v. Alameda, 57
M.J. 190, 198 (C.A.A.F. 2002).
The Fourth Amendment to the Constitution states that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated[.]” U.S. Const. amend.
IV. However, a Fourth Amendment violation occurs only when
the government violates a reasonable expectation of
privacy. A reasonable expectation of privacy exists where
a person “exhibit[s] an actual (subjective) expectation of
privacy and, second, that expectation [is] one that society
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is prepared to recognize as "‘reasonable.’" Katz v. United
States, 389 U.S. 347, 361 (1967)(Harlan, J., concurring).
See United States v. Britton, 33 M.J. 238, 239 (C.M.A.
1991). “What a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth
Amendment protection. But what he seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.” Katz, at 351 (citations
omitted).
The Supreme Court long ago recognized that sealed
letters sent through the postal system are “papers” within
the meaning of the Fourth Amendment. See Ex Parte Jackson,
96 U.S. 727, 733 (1877). Courts have also recognized that
a reasonable expectation of privacy generally exists in the
contents of sealed letters sent through the United States
Postal Service. See United States v. Van Leeuwen, 397 U.S.
249, 251 (1970)(citing Jackson, 96 U.S. at 733)(noting that
first class mail can only be “opened and examined” in
accordance with the Fourth Amendment); United States v.
Maxwell, 45 M.J. 406, 417 (C.A.A.F. 1996).1 However, no
reasonable expectation of privacy exists in the information
visible on the outside of an envelope. “Letters and sealed
1
The application of Department of Defense postal regulations was not
argued, briefed, or discussed in this case, and we do not address their
applicability.
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packages are as fully guarded from examination and
inspection, except as to their outward form and weight, as
if they were retained by the parties forwarding them in
their own domiciles.” Ex Parte Jackson, 96 U.S. at 733
(emphasis added). The military judge recognized this
distinction by dividing his analysis into two parts: (1)
“the envelope itself and the writing on the envelope” and
(2) “the contents of the sealed envelope.” We consider the
two issues in turn.
Application of the Fourth Amendment is necessarily
fact intensive. A person may have an objectively
reasonable expectation of privacy in one context, but not
another, based on small variations in material fact or
circumstance. Moreover, the analysis is multidimensional
including consideration of the scope of the search, the
location of the search, and the object searched. In this
case, Appellant placed his outgoing letter with the
trainees mail for subsequent delivery to be mailed at
Lackland AFB. Appellant’s name and address on the outside
of the envelope prompted SSgt Payne to visually examine the
envelope. The testimony indicates that certain words and a
picture were visible to the naked eye through the outside
of the envelope. There is no evidence in the record that
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SSGT Payne or SSgt Schaaf used special means to look at the
contents of the envelope.
Under Katz, the addressee and return address
information on the outside of a sealed letter are not
private because this information is knowingly exposed to
the public. Katz, 389 U.S. at 351. Disclosure of this
information is necessary for the delivery of mail and a
reasonable person has no expectation that it will remain
private. See Smith v. Maryland, 442 U.S. 735, 742-44
(1979)(finding no reasonable expectation of privacy in
phone numbers dialed since telephone users assume the risk
that the phone company will reveal numbers called to the
police); United States v. Hinton, 222 F.3d 664, 675-76 (9th
Cir. 2000)(finding no reasonable expectation of privacy in
address information on the outside of a mailed package or
in a post office “parcel locker that cannot be individually
rented, and from which the contents can be moved at
employees’ discretion”); United States v. Choate, 576 F.2d
165 (9th Cir. 1978)(finding no Fourth Amendment protection
afforded to information that would foreseeably be available
to postal employees); see also 1 Wayne R. LaFave, Search
and Seizure A Treatise on the Fourth Amendment § 2.7
Surveillance of Relationships and Movements (3d. ed. 1996 &
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Supp. 2002).2 Based on this precedent, the military judge
correctly held that Appellant did not have a reasonable
expectation of privacy in the address information on the
outside of the letter. Appellant left his letter for
others to mail thus knowingly exposing the envelope to
public view.
The contents of the letter raise a more difficult
Fourth Amendment question. Trainees and soldiers in the
field often do not have direct access to a post office and
often rely on others to transport their mail. As a general
rule, persons joining the armed forces do not forfeit the
same reasonable expectation of privacy in the contents of
their mail enjoyed by the other members of American society
they serve and protect. See Manual for Courts-Martial,
United States (2002 ed.) [hereinafter MCM] Part IV, para.
93 (criminalizing unauthorized taking and opening of mail
pursuant to Art. 134, UCMJ, 10 U.S.C. § 934 (2002)).
However, this general rule is not blind to circumstances,
just as the Fourth Amendment is not absolute in
2
The Supreme Court has also held that there is no reasonable expectation
of privacy in discarded trash left at the curb to be picked up. See
California v. Greenwood, 486 U.S. 35, 40 (1988). While many people
would be offended by the notion that someone is examining garbage left
for collection or letters left for others to deliver to postal
facilities, a reasonable person is aware of the potential risk and
knows that what is plainly visible to anyone viewing the outside of an
envelope, such as address information, is “knowingly expos[ed] to the
public.” Katz v. United States, 389 U.S. 347, 351 (1967)(citations
omitted).
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application, but adjusts to that which society, as measured
through our courts, is prepared to accept as objectively
reasonable in the context presented.
Under the circumstances of this case, Appellant may
have had a subjective expectation of privacy in the
contents of his letter that were visible through the
envelope, but such an expectation was not objectively
reasonable. At trial Appellant likened the office desk at
Camp Bullis to a mailbox and thus SSgt. Payne’s actions to
those of someone rummaging through the contents of a
mailbox. We disagree. If Appellant had desired to afford
his letter greater protection, he could have mailed the
letter himself or used a thicker, more opaque envelope. By
failing to do so, he took the risk that others would see
the information that was visible through the envelope. The
contents at issue here were seen with the naked eye by a
person who was not unlawfully viewing the outside of the
letters and had reason to consider the envelope further
after seeing Appellant’s name in light of the command
policy on social contact with trainees. Therefore, we hold
based on the facts of this case, that Appellant’s
expectation of privacy in the parts of his letter that were
readily visible to the naked eye through the envelope was
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not one that society would recognize as reasonable.3 Katz,
389 U.S. at 361.
Issue II: Maltreatment
A. Facts
MSgt Lebouef was the field supervisor and team chief
for Appellant at Camp Bullis. In this capacity, MSgt
Lebouef was responsible for the training of approximately
100 airmen as well as the supervision of 17 instructors
assigned to the apprentice course. As part of the training
regimen at Camp Bullis, MSgt Lebouef encouraged his primary
instructors assigned to each squad to conduct “just-in-
time” training. This training consisted of ad hoc classes
conducted during downtime between formal periods of
instruction, such as during those times when recruits were
awaiting their turn on a range or at a training station.
Among the ad hoc classes MSgt Lebouef encouraged his
instructors to teach, was a class on Enemy Prisoner of War
3
Appellant does not argue that his letter was seized in violation of
the Fourth Amendment. Appellant’s suppression motion and the
Government’s response, indicates that after viewing the letter, Staff
Sergeant (SSgt) Schaaf instructed SSgt Payne to return the letter to
the pile and subsequently “took the issue of the letter up the chain of
command.” Based on the facts of this case, including Appellant’s
voluntary decision to place his letter on the office table for someone
else to mail, SSgt Payne’s “inspection and detention” of the letter
did not amount to a seizure within the meaning of the Fourth Amendment.
Appellant did not have a sufficient possessory interest in the letter
at the time of SSgt Payne’s “inspection;” nor was the detention of
sufficient duration to amount to a seizure. See Maryland v. Macon, 472
U.S. 463, 469 (1985); United States v. Van Leeuwen, 397 U.S. 249, 253
(1970).
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(EPW) searches. As described by MSgt Lebouef, the EPW
search is a fast, aggressive full-body search used to check
a person for weapons and booby traps and to determine if an
individual is dead or alive in combat conditions. An EPW
search is substantially more invasive than a protective
police “frisk.” A proper EPW search involves sitting
astride a body lying facedown, grabbing and squeezing skin
and checking under clothing, rolling the body over, and
performing the same search on the front of the body,
including cavity searches between the legs and the bra area
for females.
Given the nature of the EPW search, MSgt Lebouef
“specifically told everybody on the team at least once or
twice a quarter that males search males, females search
females.” SSgt Valarie Ramirez, another instructor,
testified that she always demonstrated the search on other
females to avoid any appearance of sexual harassment, since
anyone being searched in this way could feel “violated.”
SSgt Schaaf testified that she learned the EPW search by
watching demonstrations by MSgt Lebouef and that she and
other instructors taught the search technique to trainees.
However, she stated that the Career Development Course
taught that opposite sex searches were inappropriate and
should not be performed except in emergency situations,
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where no one of the same sex was available. Finally, Ms.
Jodie Slattum (formerly Airman Daniel), a former trainee
who witnessed Appellant’s search of A1C Emilee Delvalle,
testified that Appellant himself told her at an earlier
point in training that opposite sex searches should not be
performed.
Appellant’s maltreatment specifications arose out of
his actions toward three trainees, A1C Delvalle, A1C
Melanie Schira, and A1C Humphries, in the context of EPW
training. All three testified at trial.
1. A1C Delvalle
A1C Delvalle testified that Appellant demonstrated the
EPW search on her on two occasions. In the first instance,
Appellant had the squad form a “360,” in this case a circle
facing outward, and performed the search on her with her
consent in front of two other female airmen, Airmen Daniel
and Doe. According to A1C Delvalle, Appellant was going to
have one of the female airmen search her, but did so
himself since Airman Daniel “didn’t really know what to
do.” In response to Appellant’s request to search her, A1C
Delvalle gave her permission, but also testified that “I
felt that [yes] was the only answer I could say. He was my
instructor, and I felt that he knew what he was doing.”
She also testified that she had never seen the search
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performed before and did not know what to expect when
Appellant told her to lie down on the ground.
Appellant then demonstrated the EPW search on A1C
Delvalle, including “pouncing” on her back, placing his
boot between her legs under her pelvis, “brush[ing]” his
hand, palm down across her body, including her breasts and
vaginal area. Appellant explained his actions to the other
trainees as he performed them.
The next day, Appellant again performed an EPW search
on A1C Delvalle. This time, he did so when the trainees
were practicing moving through “dense” bushes in a wedge
formation (i.e., a “backward V”). Appellant and A1C
Delvalle were at the rear of one of the wings of the wedge
when Appellant ordered the trainees to drop to the ground
in a prone position. Appellant then told her to take off
her “LBE gear” and “play dead.” He brought one of the
female airman to the back of the “V,” explaining that he
was going to demonstrate the search again. The other
trainees remained where they dropped, “spread out in the
wedge formation.”
During this second search Appellant did not ask A1C
Delvalle’s permission. Rather, when another female airman
moved to perform the search, but had not yet touched A1C
Delvalle, Appellant said, “I’m going to show you how to do
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the search again.” He then searched her again, doing in
A1C Delvalle’s words “the same exact search, but it was
more of a grab. It wasn’t so much of a brush this time.”
This included “grabbing and squeezing” her breasts and
groin.
2. A1C Schira
A1C Schira testified that Appellant “searched” her on
more than one occasion. She stated that she could not
remember whether Appellant asked for her consent before
searching her and that she felt “violated.” However, A1C
Robertin-Meridith, a fellow trainee, later testified that
A1C Schira volunteered to be searched.
A1C Schira testified that she played the role of the
“dead body,” lying face down, and having the EPW search
performed on her. She stated that Appellant touched her
back, legs, inner thigh, and buttocks and that he
unbuttoned some of the top buttons of her shirt. A1C
Schira further testified that she felt “violated” while
Appellant’s hands were going over her body. On cross-
examination, A1C Schira testified that Appellant did not
touch her breasts or vaginal area with his hands during the
search. She also stated that all the searches were
performed in front of the whole squad.
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3. A1C Humphries
A1C Humphries also testified to two body searches
performed on her by Appellant. She was chosen by Appellant
and told to “play dead on the ground” to demonstrate the
“dead body” search. Appellant did not ask for her consent
and the search was performed with the rest of her squad “in
a half circle observing.” A1C Humphries testified that
Appellant did not remove any of her clothing, but went down
the side of her body with his palms. She stated that he
also “grab[bed and] squeez[ed]” her breasts and buttocks.
He also made a “knife sweep” of her vaginal area and
touched her there with his fingers. A1C Humphries said
that she felt “humiliated,” “angry and shocked and
confused” by Appellant’s touching. When asked why she did
not say anything to him at the time, she responded that
“[g]oing through training, basic and tech school,
instructors just try to push upon you how high ranking an
NCO is, how much more powerful and high ranking they are
over an airman, so I didn’t say anything.”
Appellant also performed a second search of A1C
Humphries that was “the same as the first.” Regarding this
search, she stated, “I was more angry because I didn’t know
why I was being chosen.” She did not report the incident
because she “didn’t think . . . [she] would be believed.”
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Appellant was acquitted of the maltreatment
specification involving A1C Schira, but convicted on the
other two specifications.
B. Discussion
Independent of his Fourth Amendment claim, Appellant
argues that the evidence is legally insufficient to find
him guilty of maltreatment based on his EPW searches of
female trainees. The test for legal sufficiency of
evidence “is whether, considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987)(citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). “Furthermore, we will draw every reasonable
inference from the evidence of record in favor of the
prosecution.” United States v. Davis, 56 M.J. 299, 300
(C.A.A.F. 2002).
The elements of maltreatment are:
(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.
MCM Part IV, para. 17.b.
“[C]ruelty, oppression, or maltreatment, although not
necessarily physical, must be measured by an objective
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standard. . . . The imposition of necessary or proper
duties and the exaction of their performance does not
constitute this offense even though the duties are arduous
or hazardous or both.” Id. at para. 17.c.(2). There is no
need to show actual harm, rather “[i]t 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.” United States v. Carson, 57 M.J. 410, 415
(C.A.A.F. 2002).
Appellant contends that his body searches of female
trainees were proper demonstrations of the EPW search
technique, and that his acquittal on the specification
involving A1C Schira, indicated that the members applied an
improper subjective standard rather than Carson’s objective
standard. Although A1C Schira testified that she felt
“violated,” A1C Robertin, a fellow trainee, testified that
A1C Schira volunteered to be searched. Appellant therefore
claims that the members clearly used the wrong standard
because they only convicted him of maltreatment against the
two trainees subjectively upset by his conduct.
However, Appellant’s acquittal as to A1C Schira does
not prove that the members used an improper subjective
standard, because other differences exist in the testimony
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that might justify different results. Most importantly,
A1C Schira testified on cross-examination that Appellant
did not touch her breasts or vaginal area with his hands
during the search. In contrast, A1Cs Delvalle and
Humphries testified that Appellant’s search included
“grabbing and squeezing” their breasts and touching their
vaginal areas. A reasonable panel applying an objective
test could find that the searches of A1C Delvalle and A1C
Humphries rose to the level of maltreatment, while the
search of A1C Schira did not. Moreover, testimony
indicated that the airmen in question were trainees subject
to Appellant’s orders as their primary instructor. Both
A1C Humphries and A1C Delvalle stated that Appellant’s
grade as an NCO influenced the manner in which they reacted
to his touches.
Further, Appellant’s claim that the searches were
“necessary or proper duties” for training and not
maltreatment is rebutted by the testimony of MSgt Lebouef,
SSgt Schaaf, SSgt Rodriguez, and Ms. Slattum. The EPW
search is a legitimate subject of instruction, which
necessarily is demonstrated in an aggressive and violating
manner. In a deployed context EPW searches might well be
performed as a matter of military necessity on persons of
the opposite sex. But for the purposes of training at Camp
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Bullis these four witnesses testified that same sex EPW
searches were inappropriate or prohibited.
A reasonable panel could therefore find that
Appellant’s opposite sex EPW searches were not necessary or
proper, as a training mechanism. Further, a reasonable
factfinder could find that Appellant’s intrusive body
search of female trainees, objectively viewed, reasonably
could have caused mental harm or suffering based on, among
other testimony, that of SSgt Ramirez, who stated that a
person subject to an EPW search could feel “violated,” and
that of A1C Humphries, who stated that she felt humiliated
by the search.
Decision
For these reasons, we affirm the findings and sentence
of the Air Force Court of Criminal Appeals.
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