United States v. Harman ( 2010 )

UNITED STATES, Appellee
v.
Sabrina D. HARMAN, Specialist
U.S. Army, Appellant
No. 08-0804
Crim. App. No. 20050597
United States Court of Appeals for the Armed Forces
Argued October 14, 2009
Decided February 4, 2010
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Captain
Jennifer A. Parker (on brief); Major Grace M. Gallagher.
For Appellee: Captain Stephanie R. Cooper (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, and
Major Lynn I. Williams (on brief); Major Lisa L. Gumbs and Major
Teresa T. Phelps.
Military Judge: James Pohl
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Harman, No. 08-0804/AR
Judge STUCKY delivered the opinion of the Court.
Appellant, an Army reservist assigned as a guard at Abu
Ghraib prison in Iraq in 2003, was convicted of various offenses
concerning the maltreatment of detainees. We granted review to
consider whether the evidence is legally sufficient to sustain
the findings of guilty. For the reasons that follow, we find no
error and affirm.
I.
Contrary to her pleas, Appellant was convicted at a general
court-martial, with officer and enlisted members, of conspiracy
to maltreat subordinates; dereliction of duty by failing to
protect Iraqi detainees from abuse, cruelty, and maltreatment;
and four specifications of maltreatment under Articles 81, 92,
and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
881, 892, 893 (2006). Appellant was sentenced to a bad-conduct
discharge, confinement for six months, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority
approved the sentence, with slight modifications to the
forfeitures and confinement credits. The United States Army
Court of Criminal Appeals (CCA) affirmed. United States v.
Harman, 66 M.J. 710, 720 (A. Ct. Crim. App. 2008).
Appellant’s convictions stem from incidents at Abu Ghraib
prison in Iraq where she served as a guard in the fall of 2003.
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The first incident took place on November 4, 2003.1 Appellant
admitted to investigators that she took a new detainee, who had
been placed on a box with a hood over his head, affixed his
fingers with wires, and told him he would be electrocuted if he
fell off the box. Appellant then photographed the victim who
stood on the box for approximately an hour. Appellant admitted
it was her idea to attach these wires, though military
intelligence officials had not asked her or her colleagues to do
so. Appellant thought this was permissible because “[w]e were
not hurting him. It was not anything that bad.”
On November 7, 2003, more detainees were securely
transferred to Appellant’s area with handcuffs and sandbags over
their heads so they could pose no harm. Other soldiers took it
upon themselves to “discipline” the detainees by taking the
detainees’ clothes off and forcing them into a human pyramid,
stepping on their hands and toes, and punching a hooded detainee
so hard that he needed medical treatment. Appellant admitted in
her sworn statement that she observed what was taking place,
retrieved her digital camera, and returned to join the soldiers.
Once there, she took numerous pictures, wrote “I’m a rapeist
[sic]” on a detainee’s naked thigh, and posed in front of the
nude pyramid of detainees while smiling and giving a “thumbs up”
1
Appellant was acquitted of another charge arising from an
earlier incident on October 25, 2003.
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sign. Appellant’s colleagues described their collective mood as
“[j]ust laughing and joking.” Another servicemember reported
the abuse. Later, Appellant told an investigator “I don’t think
the human pyramid was wrong, nor [my colleague] posing like he
was going to hit the prisoner.” But she also acknowledged that
she was “sure it hurt” to be subject to these measures.
Appellant did not report any of these incidents, although she
had earlier expressed mixed feelings about mistreatment of
detainees.2 Two soldiers reported some of these incidents, and
on January 12, 2004, one of them turned over digital images of
the incidents.
II.
This Court reviews questions of legal sufficiency de novo
as a matter of law. United States v. Wilcox, 66 M.J. 442, 446
(C.A.A.F. 2008). The test for legal sufficiency is “‘whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Mack, 65 M.J. 108, 114 (C.A.A.F. 2007) (quoting
2
In an October 20, 2003, letter to a former roommate, Appellant
claimed she first thought such incidents were “funny then it hit
me, that’s a form of molestation. You can’t do that.” She
added that “[t]he only reason I want to be there is to get the
pictures to prove the US is not what they think. . . . What if
that was me in their shoes. . . . Both sides of me think it’s
wrong.”
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Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We affirm the
decision of the lower court.
A. Conspiracy
Appellant argues that her conspiracy conviction was legally
insufficient because she had no intent to conspire and because
intent cannot be inferred from her “thumbs up” sign. Under
Article 81, UCMJ, conspiracy requires: “‘(1) That the accused
entered into an agreement with one or more persons to commit an
offense under the code; and (2) That, while the agreement
continued to exist, and while the accused remained a party to
the agreement, the accused or at least one of the co-
conspirators performed an overt act for the purpose of bringing
about the object of the conspiracy.’” United States v. Whitten,
56 M.J. 234, 236 (C.A.A.F. 2002) (quoting Manual for Courts-
Martial, United States pt. IV, para. 5.b (2000 ed.) (MCM)).
Conspiracy “need not be in any particular form or manifested in
any formal words,” rather “[i]t is sufficient if the agreement
is ‘merely a mutual understanding among the parties.’” Mack, 65
M.J. at 114 (citations omitted). “The existence of a conspiracy
may be established by circumstantial evidence, including
reasonable inferences derived from the conduct of the parties
themselves.” Id. (citations omitted).
Appellant’s conduct is legally sufficient for a conspiracy
conviction because she actively participated in the abuse and
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encouraged others to do so. As the CCA rightly concluded,
Appellant’s “smiling face, when seen with the ‘thumbs up’ hand
signals, shows approval and encouragement to her co-conspirators
as they maltreated the prisoners. An inference that she was
joining their purpose is justified.” Harman, 66 M.J. at 715.
Furthermore, Appellant freely chose to participate in abuse and,
in fact, voluntarily left to retrieve her camera so she could
return to join and photograph the abuse. Appellant’s previous
letter to her roommate did not alter the intent manifested
during the course of the abuse. Her direct involvement and
obvious approbation, combined with her jokes and failure to stop
or report the abuse, further support a “reasonable inference[]”
of conspiracy “derived from the conduct of the parties
themselves.” Mack, 65 M.J. at 114 (citations omitted).
B. Dereliction of Duty
Appellant was convicted of dereliction of duty for failing
to perform her duty to protect Iraqi detainees from abuse,
cruelty, and maltreatment, in violation of Article 92, UCMJ.
Appellant now argues those convictions were legally insufficient
and emphasizes that she was not properly trained. Willful
dereliction of duty requires: “‘(a) That the accused had
certain duties; (b) That the accused knew or reasonably should
have known of the duties; and (c) That the accused was willfully
derelict in the performance of those duties.’” United States v.
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United States v. Harman, No. 08-0804/AR
Pacheco, 56 M.J. 1, 3 (C.A.A.F. 2001) (quoting MCM pt. IV, para.
16.b.(3)).
Appellant’s participation goes beyond mere acquiescence or
negligent dereliction of duty: she actively and willingly
participated in attaching wires to a detainee, writing “rapeist”
on a detainee’s naked thigh, taking photos, and encouraging
others’ abuse. Appellant received training in the care, custody
and control of detainees as well as in the basic requirements of
the Geneva Conventions regarding their treatment. Appellant
does not allege that she was unaware of her fundamental duty to
care for and protect detainees.3 Appellant did not require
specialized training to know that her actions were wrong, as
evidenced by her own admissions as well as her colleagues’
decisions to report the abuses. Appellant failed in her duty to
protect the detainees, and her conviction was legally
sufficient.
C. Maltreatment
Appellant was convicted of four specifications of
maltreatment for photographing, placing electrodes on, and
3
Appellant’s letter to her roommate, supra note 2, shows she
appreciated the wrongfulness of her misconduct. The letter also
undermines Appellant’s simultaneous arguments that she was
untrained to recognize maltreatment and that she was really just
trying to document and stop abuse.
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United States v. Harman, No. 08-0804/AR
writing “rapeist” on detainees, in violation of Article 93,
UCMJ. Appellant argues that no detainee suffered harm from her
actions since none of them was aware of her photographs or felt
pain from the wires. Maltreatment requires: “(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.” United States v. Springer, 58 M.J. 164, 171
(C.A.A.F. 2003) (quoting MCM pt. IV, para. 17.b.). Unlike in
United States v. Smith, __ M.J. __ (C.A.A.F. 2010), Appellant
does not assert that the detainees were not subject to her
orders. There is “no need to show actual harm, rather ‘it 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.’” Id. at 171-72 (quoting United States v.
Carson, 57 M.J. 410, 415 (C.A.A.F. 2002)).
In this case, the objective standard of harm is met for all
four specifications: as the CCA correctly found, “[n]o
reasonable detainee would want to be abused and, more
importantly here, would wish his abusers to record this
pointless, humiliating conduct.” Harman, 66 M.J. at 717. At
least one detainee was aware he was being photographed at the
time of the incidents. It was reasonable for the military judge
to find that one detainee would have feared electrocution when
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guards explicitly told him he would be electrocuted if he fell
off the box, irrespective of whether the wires were actually
electrified. It is similarly reasonable that the military judge
concluded another detainee would suffer from having “rapeist”
capriciously written on his leg while lying partially naked,
hooded, and bound. Appellant’s convictions were legally
sufficient.
III.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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