Scott v. United States

351 F.Supp.3d 1

Daryl SCOTT, Plaintiff,

v.UNITED STATES, Defendant.

Case No. 1:17-cv-02301 (TNM)

United States District Court, District of Columbia.

Signed December 18, 2018

David Patrick Sheldon, Law Offices of David P. Sheldon, PLLC, James Dominic Valentine, U.S. Department of Defense Military Commissions Defense Organization, Washington, DC, for Plaintiff.

Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

The plaintiff in this case seeks to overturn his court-martial conviction of rape based on misfeasance by the DNA analyst in unrelated cases.

Daryl Scott was a hospital corpsman at the U.S. Naval Hospital in Okinawa, Japan. One night after work in 2001, he met up with a few of his friends to go out drinking. He returned to the naval barracks later that evening with three servicemembers, including a woman who was so intoxicated that she could not walk unassisted. The group helped her to her room before disbanding. Mr. Scott remained behind and saw the woman lay down on her bed. He noticed that she was incoherent and passing in and out of consciousness. So he got in the bed and began kissing her.

Mr. Scott claims that he does not remember what happened next. When the woman woke up in the morning, she was covered in blood. She was wearing a pair of white boxers that were not hers. The tampon she had been using the night before was lying on the floor. The sheets on her bed were missing. Feeling scared and confused, she reported the incident to her chain of command. An investigation by the Naval Criminal Investigative Service ("NCIS") found a stain on the woman's mattress that contained a mixture of her and Mr. Scott's DNA.

Based on these facts, Mr. Scott pled guilty to raping the woman. He told a military judge he had no reason to believe that the victim and witnesses were mistaken about his actions, and that he was convinced of his guilt. After inquiring into its factual basis, the military judge accepted Mr. Scott's plea. He was discharged from the Navy and sentenced to seven years' incarceration. Under a pretrial agreement, the confinement was reduced to four years. He served this sentence and currently lives in Pine Ridge, South Dakota.

Mr. Scott now collaterally attacks his court-martial conviction. He contends that an NCIS analyst fabricated the DNA evidence brought against him. He also believes that the military courts violated the U.S. Constitution and the Administrative Procedure Act ("APA") by refusing to adequately re-consider his case.

The Court disagrees. It finds that Mr. Scott has not adduced facts sufficient to support his claim of falsified evidence. Even if he could present such facts, his guilty plea was based on much more than just the results of DNA testing. His allegations were fully and fairly considered by the military tribunals. And the statutory scheme created by Congress precludes an APA review of Mr. Scott's case. The Court will thus grant the Government summary judgment on Mr. Scott's constitutional claims and will dismiss his APA claims.

I.

Before accepting a guilty plea, "a military judge must conduct a thorough inquiry to insure the accused understands the meaning and effect of the plea, that he enters it voluntarily, and that he in fact is guilty of the offense." United States v. Roane , 43 M.J. 93, 98 (C.A.A.F. 1995) (discussing Art. 45(a), Uniform Code of Military Justice). The purpose of this "providence inquiry" is to establish a sufficient basis in law and fact for accepting an accused party's guilt. See United States v. O'Connor , 58 M.J. 450, 453 (C.A.A.F. 2003). "In this respect, military practice differs from that in other federal courts that permit the accused to plead guilty even though the defendant personally professes innocence—a so-called ‘ Alford plea.’ " Roane , 43 M.J. at 98 (citing North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ).

Consistent with this requirement, a military judge conducted an extensive providence inquiry before accepting Mr. Scott's guilty plea. A.R. 9-25. During the inquiry, Mr. Scott conveyed that he had read, understood, and agreed with a stipulation of facts concerning his conduct. A.R. 13. The stipulation stated that:

• "At no time that evening did [the woman] give [Mr. Scott] any indication that she was interested in [him] sexually or romantically;"• The woman "was highly intoxicated as a result of drinking alcoholic beverages that evening and could not walk by herself to her barracks room;"

• Mr. Scott "knew that [the woman] was intoxicated ... because [he] had seen her consume many beers throughout the late evening and early morning;"

• Mr. Scott saw that the woman "was not coherent and passed in and out of consciousness;"

• Mr. Scott "remember[s] lying side by side with her and kissing her;" and

• The next morning, Mr. Scott "returned to [the woman's] room and realized that [he] had committed a sexual act with someone who was unable to give her consent because she was too intoxicated. [He] was scared that someone might see [him] leaving the room, so [he] locked [her] door from the inside and left through her window." A.R. 34-35.

The military judge also asked Mr. Scott to describe, in his own words, what happened that night. A.R. 21. He did so. He also confirmed his belief that he "completed this act of sexual intercourse and without the consent of" the woman. A.R. 23.

Though Mr. Scott claimed not to remember the details of the assault, he believed the NCIS investigation was "accurate and reliable." A.R. 20. He said he had no reason to doubt the accounts of the victim and witnesses. A.R. 20-21. And he confirmed that "despite the fact that [he] cannot remember what happened ... [he is] still guilty of raping" the woman. A.R. 21.

Contrary to the normal procedure in federal court guilty pleas, the judge also heard testimony from the victim. She described waking up covered in blood, wearing boxer shorts that did not belong to her, and seeing her tampon lying on the floor. A.R. 29. Her bed sheets were missing, and her curtain was pulled aside. This was something she never did "because [she] live[d] on the first deck." Id. After considering her testimony, the NCIS investigative report, and Mr. Scott's admissions, the military judge found him guilty of rape. A.R. 36.

Roughly two years later, Mr. Scott filed the first of several appeals contesting his conviction. A.R. 38-46. He argued that he had "pled guilty to a rape that was alleged by nobody and that may have never occurred," as neither he nor the woman "remember[ed] whether he had intercourse with her." A.R. 39. He attacked the DNA evidence against him, suggesting that the mixture of his semen and her blood found by NCIS "could have just have [sic] easily occurred outside the vagina." A.R. 42. Thus, he insisted, the military judge's providence inquiry was deficient, as he "failed in his duty to ask the difficult questions, the ones that would have caused him to reject the [guilty] plea." A.R. 44.

The Navy-Marine Corps Court of Criminal Appeals ("Navy Appeals Court") rejected these arguments. It found that he "indicated an understanding of the elements of the offense ... and stated that the elements correctly described the offense he committed." A.R. 60. Mr. Scott also "clearly stated, in his own words, the circumstances surrounding the rape." Id. The Navy Appeals Court concluded that "[a]lthough the appellant was unable to remember having engaged in intercourse with the victim, his inability to remember does not invalidate the plea where the appellant was convinced of his guilt based on the strength of the evidence against him." Id.

Three years after this denial, Mr. Scott tried again. He filed a writ of error coram nobis with the Navy Appeals Court. This time, he asked for an evidentiary hearing "in light of newly disclosed evidence of the general mishandling of [DNA] evidence" at an NCIS criminal investigation laboratory. A.R. 62. Mr. Scott argued that the DNA results in his case were "the only reason Appellant believed he had raped" the woman, and that if these "results were in fact fabricated, the ‘strength’ of the evidence against Appellant would evaporate." A.R. 64.

His challenge arose out of a memorandum issued by the laboratory. It noted that an analyst falsified an entry on one of the DNA tests he had conducted, and that the same analyst had once been suspended after "permitting contamination in his testing processes." A.R. 76. Upon discovering this issue, the laboratory began "reviewing the hundreds of cases worked on by this examiner," and stated that "[a]s of this writing, no false reports are believed to have left the laboratory." Id. Mr. Scott characterized this as "newly discovered evidence" that "sheds new light on the reliability of Appellant's conviction." A.R. 65. He urged the court to order more DNA testing through a " DuBay hearing." See United States v. DuBay , 37 C.M.R. 411 (C.M.A. 1967).¹

The court declined to do so. The basis for Mr. Scott's request, it noted, "is the misconduct in other cases of the laboratory technician who conducted the DNA test in the appellant's case." A.R. 102. It found that Mr. Scott "offers no evidence that the DNA results in his case were tainted or false" and that he "did not seek independent testing of the evidence at the time of his court-martial." Id. The court also found that "during the providence inquiry, [he] cited a variety of factors in support of his believe that he was guilty of the offense and not just the results of a DNA test." Id.

Undeterred, Mr. Scott filed a third challenge eight years later. He again asserted that his conviction "was based solely on DNA evidence" tested by Phillip Mills, the examiner whose misconduct was the subject of the laboratory's memorandum. A.R. 104. He claimed to have "recently discovered that Dr. Mills destroyed the DNA samples in this case in violation of...