San Jose Mercury News, JULY 24, 1988
THE PARENTS' AGONY, THE ARMY'S COVER-UP, THE PROSECUTION'S FAILURE.
Were children really being sexually abused at the Presidio?
The Army didn't want to believe it.
The prosecution didn't think they could make a jury believe it.
But the parents believe it.
ARMY OF THE NIGHT
By Linda Goldston
Even before Joyce Tobin arrived at the Day Care Center on Nov. 14, 1986, she suspected that something was wrong. Her neighbor Karen Thomas had just called to say that Joyce's 3yearold son had begged to go home with her when she picked up her own youngster at the Child Development Center that morning. Joyce's son had said he didn't want to stay for day care after his preschool class ended.
When Thomas said she couldn't take him with her, the Tobin boy turned to his preschool teacher and asked if he could stay with her. But she had no choice. Joyce Tobin was at the dentist across town and had arranged for her son to be taken from his preschool class at the CDC to hourly care until she could pick him up. Until the boy started preschool two months earlier, he had been left at center once or twice a month for two years. It was only the second time he had been left in hourly care since September both times while his mother had medical appointments
The preschool and hourly care programs were both run by the US. Army at the Presidio of San Francisco, a sprawling compound of turn of the century wood and brick buildings, headquarters of the Sixth Army, the place that motorists glimpse through the pines on their way to the Golden Gate Bridge.
On that day that changed her life and the lives of her family, Joyce Tobin arrived at the Presidio day care center at 2:30 p.m. Her son appeared to be napping with several other children, and the teacher, Gary Hambright, was sitting at a table in the room.
When Joyce asked how her son had been that day, Hambright said the boy had been upset and had not eaten his lunch. He called the child a "darling little boy" and suggested that she bring him to the day care center every other day so that the boy could "get used to him." A lot of 3 and 4yearolds had trouble coming to his daycare room, Hambright told her. He suggested they were intimidated by the older children in the class
That night, while watching television with his older brother, the 3-year-old started playing with his penis, pulling it forward with both hands and letting go. "Mr. Gary do it," he said and kept at it. His brother ran for their mother, who was talking to a neighbor in the front doorway. Trying to keep her voice calm, Joyce asked her son what he was talking about.
The child's reply was terse and grim. "He touched my penis with his hand, and he bit my penis." The boy made a chomping sound with his mouth. Asked if "Mr. Gary" had done anything else, the boy said, "He put a pencil in my hole in my bottom. He do that, he do that to me. He hurt me and I cry and I cry."
Joyce Tobin was unsure what to think. "It seemed too impossible and horrible to be true," she said later. "I also thought how awful it would be to accuse someone of this if it were not true." She watched her young son bite his nails and turn his head away. He seemed nervous and upset.
When her husband, Capt. Mike Tobin, came home, the couple decided to observe their son over the weekend. They agreed they would not question him, but would wait to see if he said anything more. At bedtime, Joyce, who had trained as a nurse, examined the boy's anus; it seemed a little red.
That night, the boy came to their bedroom crying. He said he was scared. He said he wanted to sleep with them.
During the next few days, what had seemed at first "too impossible and horrible to be true" would not go away. The boy continued to talk about "Mr. Gary" hurting him.
The following Tuesday, on Nov. 18, Joyce Tobin was driving through the Presidio with the boy. When they came to the intersection where she would have turned to go to the day care center, he raised himself up out of his car seat, as if he were attempting to get out, and started to cry. "Are you taking me to day care?" He asked. "I don't want to go to day care. Mr. Gary hurt me and I cry." Reassured that they were not going to the day care center, the boy calmed down.
The mother could not. The incident convinced her that she should contact the day care center. On Wednesday, she called the director, Diana Curl and asked for an appointment to discuss her son's allegation. Despite the seriousness of the complaint, Curl said she couldn't see Joyce until Friday, two days later. Within half an hour of the call, Joyce was called at home by one of her son's pre-school teachers wanting to know what the problem was. The day care center staff had been told immediately about Joyce's call. Authorities did not search the center until Friday.
Joyce Tobin never got to meet with Diana Curl. The case broke before then. On Thursday, Mike Tobin spoke with a chaplain at the Presidio, who contacted the Army's Criminal Investigation Division. Officers from the CID made an appointment to interview and videotape the boy about his allegations. After the video taped interview on the morning of Nov. 21, the Tobins' son was examined at the Child Adolescent Sexual Abuse Referral Center (CASARC) at San Francisco General Hospital. .
CASARC reviews more than 700 cases of suspected sexual abuse every year. Among other things, the CASARC staff had often heard children describe anal rape as having a pencil put in their bottoms. When Dr. Kevin Coulter examined the Tobins' son, he observed that the child's anus dilated to approximately 20 millimeters in approximately five seconds, a much faster and wider dilation than normal. Coulter had conducted more than 300 examinations of children at CASARC. His conclusion was that such rapid and wide dilation was caused by trauma to the anus and rectum, consistent with penetration. The Tobins' 3-year-old son had been sexually abused, anally raped.
A FLURRY OF MEETINGS AT THE PRESIDIO followed the revelation that the Tobin boy had been abused. But for all the activity, the Army seemed in no hurry to proceed with the case. It took the Army 12 days to form a strategy group. And it took the Army almost a month to notify the parents of other children who had been in "Mr. Gary's" class that the incident had taken place, that their children might be at risk. Nearly a year would pass before more than 59 other victims children between the ages of 3 and 7 had been identified. And allegations would be made by parents that several more children were molested even after the investigation had begun.
Day care centers under state jurisdiction are routinely closed when an abuse incident is confirmed, but the Presidio center stayed open for more than a year after the Tobin boy said "Mr. Gary" had hurt him.
A strategy meeting on Dec. 10 set the tone for the case. The meeting was attended by all the brass from the Presidio, representatives of the FBI and the US Attorney's Office and staff from the Child Adolescent Sexual Abuse Referral Center. The CASARC workers told the Army to expect multiple victims, so many that CASARC could not offer its help. But the Army "didn't want to believe that," says one CASARC worker who attended the meeting.
Five days later, on Dec. 15, letters were mailed to 242 parents whose children were in Hambright's classes. "The Commander of the Presidio of San Francisco, has been apprised of a single incident of alleged child sexual abuse reported to have occurred at the Presidio Child Development Center.......
"We have no reason to believe that other children have been victimized." Many parents who received the letter took the Army at its word. Many of them didn't learn until the following April, after the Tobins and other parents forced the Army to send out another letter, that their children had been victims.
Other parents found out right away. The children had begun to talk. And they kept talking. That was the problem. They kept saying things that no one, especially not the Army, wanted to hear. They kept mentioning other people besides "Mr. Gary," other locations besides the day care center. Among the allegations:
- Some of the children said they were taken from the day care center to private homes on the Presidio where they were sexually abused. Two houses were singled out on the Army post and at least one home off-post, in San Francisco.
- One girl said she played "poopoo baseball" at the home of one of her female teachers. The girl said the game involved throwing feces at the teacher.
- Other children talked about playing the"googoo game" with "Mr. Gary". It involved Hambright having the children urinate and defecate on him. Then he would do the same to them. Sometimes, the children said, they were forced to drink urine and eat feces. Some said they had blood smeared on their bodies.
- Some children said they had guns pointed at them. Others said they were told they or their parents would be killed if they told what happened.
- One 3-year-old boy said he was sexually abused on his first visit to the center. That day was also his birthday.
- A 3-year-old girl said "Mr. Gary" used special pens, black, blue, pink and red -- to doodle on her, starting at her legs and moving up over her genitals. The same child said she saw one of her friends at the center cry when "Mr. Gary's" friend, a woman, pointed a gun at the friend.
- There were five confirmed cases of Chlamydia, a sexually transmitted disease, including two of the four daughters of one family.
- A preliminary test of one boy for AIDS came back positive. Further tests revealed that a he did not have the disease, but fear of AIDS tormented parents for months. .
DESPITE THE RUMORS AND ALLEGATIONS, THE Army, the FBI and the U.S. Attorney's Office were united in wanting a simple pedophile case. The Army wanted the matter over with. The prosecutors wanted a case they would win. The more unusual the allegations, they felt, the harder it would be to win in court. So on Jan. 5, 1987, Gary Willard Hambright was arrested.
Hambright, 35, was an ordained Southern Baptist minister without a pulpit. After moving to the Bay Area in 1977 from his home in Tacoma, Wash., he worked as a substitute teacher in San Francisco schools before taking the $7.59 per hour job at the day care center in 1985. At his arraignment, he described himself as "an educator, not a criminal." His close friend Gordon Grover, a beauty salon owner, said the thin, pale man with blond hair is "probably one of the most gentle people you will ever know."
"He's always got time to give kids a hug when they're crying" Grover said "He's just really a kind person."
After the arrest, Hambright took part-time jobs cleaning houses and washing windows. He lived with friends and continued to be closely associated with Dolores Street Baptist Church in San Francisco.
The indictment that Assistant US Attorney Susan Gray had sought from the grand jury charged Hambright with molesting only one child. He was accused of sodomy, oral copulation and committing a lewd and lascivious act on a child.
In March, three months after Hambright's arrest, the charges were dismissed. US District Court Judge William Schwarzer refused to allow the admission of so-called hearsay statements, specifically the comments the Tobin boy made to his brother and mother, and to the nurse and the doctor who examined him about the abuse. Several states allow exceptions to the hearsay rules in child abuse cases, but federal courts and California state courts do not.
Schwarzer refused the hearsay evidence on March 4 and ruled that the Tobin boy would not qualify as a competent witness because of his age.
On March 20, the US Attorney's Office asked that the charges be dismissed without prejudice, meaning they could be refiled if new evidence emerged. Prosecutor Gray told the judge she had 12 more children saying the same things as the Tobin boy. Gray had counted on the judge's allowing the admission of statements the Tobin boy made to his brother on the day he first said "Mr. Gary" hurt him as well as similar comments made to the nurse and doctor who examined him. The medical evidence and the "perfect witness" parents made her even more confident. Joyce Tobin was a nurse. Mike Tobin was a West Point graduate and a nuclear engineer.
But the Army's investigation of the Tobin boy's allegations had gotten off to a shaky start when Army Criminal investigative Special Agent Marc Remson was assigned to interview the child.
Remson had never interviewed a child younger than 8 years old. And while Army regulations required that the interview be taped, Remson had never used videotape in an interview. The regulation was later changed, but the damage had been done. The videotape was to be singled out repeatedly as an example of how the children had been coached and prodded to tell their stories.
Joyce Tobin, according to court records, said that during the interview, "apparently in an attempt to establish rapport with my son, (the CID investigator) said that Mr. Gary was bad and should be spanked. He said this numerous times. Thereafter, in the week that followed when [my son] spoke about Mr. Gary, he described Mr. Gary as bad and said he should be spanked.
"Prior to the CID interview [my son] had never said anything like that or attempted to make any value judgment about what had happened to him. He just reported what had happened to him," Joyce Tobin told the prosecution. .
WITH THE CHARGES DISMISSED, GRAY'S attempt at a simple pedophile case had failed. The court would not hear of the Presidio again until the end of September 1987. The Tobins were disappointed but not defeated. They had begun calling and writing congressmen, calling and meeting with Army officials at the Presidio.
By April, another battle had shaped up outside the Courtroom. The Army insisted that the day care center was safe, that all of the victims had been identified. Parents feared otherwise because their children had mentioned people other than Hambright -- people who still worked at the day care center.
At first, it was the Tobins alone who kept asking: Was this done? Did you check on that? What about the other children? By April, the Tobins had been joined by the Runyans the Adams-Thompsons the Dorseys, the Foxes. Most had not met before. They were to meet many times in the months to come.
Their first priority was to get another letter mailed to Parents of other children who had attended the day care center. The Army saw no need for that. "Why are you doing this?" Lt. Col. Walter Meyer, the director of personnel and community activities, asked Mike Tobin. "Because parents need to know what's happening." Tobin told him. The letter was delayed for two weeks while Meyer argued over whether the number of victims mentioned in the letter should be 32 or 37. When Joyce Tobin and Brenda Fox went to his office to discuss the letter, Meyer said he didn't have time to talk, Fox recalls, that he was on his way "to make a videotape about the CDC, about it being a model day care center. He said, "despite what you may believe, this is a model day care center"
"I sat there thinking, 'this man has no soul,'" she says, "We told him the numbers were wrong." He said, 'no, they're not' . "We waited while he called and found out the numbers were wrong."
"Under the signatures of Joyce and Mike Tobin, Gretchen and Dennis Runyan, Sue and Tom Dorsey, Michelle and Larry Adams-Thompson, and Brenda and Don Fox, the letter, dated April 29, 1987, was mailed to parents. "We feel you should know there are now 37 children identified by the authorities as suspected victims," the letter said in part, "we are very concerned that there may be more children affected and in need of help, yet remain unidentified. "
The core group of parents consisted of professional people doctors, a dentist, a nuclear scientist. They spoke out loud and often. They said they spoke for those who could not, the children and the enlisted people who, they said, were too afraid to risk their military career to speak out. The enlisted people needed their jobs and the day care. The core group could afford day care elsewhere.
"When it first started, they had the chance to be heroes," parent Melanie Thompson said about the Army instead, they just didn't want to believe it, Now, they're just trying to cover it up like a bad dream." .
NONE OF THE PARENTS WHO WERE PROTESTING the Army's handling of the case knew that signs of trouble had surfaced at the center at least six years earlier. And none of them knew that the Army had been dealing with sex abuse problems at its day care centers for years before the Presidio case broke.
The Army said nothing of prior cases at West Point and Fort Dix. The Army said nothing of an investigation six years before involving John Gunnarson, the Presidio's top day care official and the supervisor of the day care center during the time Hambright allegedly molested the children.
In 1982, Gunnarson was child support services coordinator at the center, responsible for the training of the center staff, when he was arrested on charges of assaulting an employee of the center, Pearl Broadnax. Broadnax had been complaining about conditions at the center and treatment of the children. She say she was branded a troublemaker and often called to task about her job performance. On Feb. 3, 1982, she and Gunnarson argued over the use of scissors by the children. He asked her to go into another room to continue the discussion, but Broadnax said she wanted to remain in the playroom. "At this time," according to an investigative report of the incident, "Gunnarson grabbed Broadnax by the left arm above her wrist and pulled her toward him. She then told Gunnarson, "don't touch me," to which he replied, I'm not touching you.' She felt that she was in fear of bodily harm at this point in the incident.
Gunnarson declined to be interviewed about the incident but responded to questions through Presidio spokesman Bob Mahoney. "I did not grab Mrs. Broadnax; I did not assault her, and I had no intention of harming her," he related to Mahoney. "In the course of our conversation, Mrs. Broadnax became agitated and appeared to be losing control of herself. I attempted to calm her by lightly touching her arm to guide her out from the room where we were talking."
The charge against Gunnarson was dismissed for lack of evidence. The incident could possibly be dismissed as an unfortunate misunderstanding, except that investigation at the time led to allegations of physical and sexual abuse of children at the center, according to former military police investigator Ed Albanoski, then the chief of juvenile investigations at the Presidio.
Now a deputy sheriff in Santa Clara County, Albanoski called after he read one of my stories about the Presidio case. "When I read the paper, I almost fell out of my chair," Albanoski said "'I couldn't believe [Gunnarson] was still working there" While interviewing Broadnax at the day care center after she had called MPs about Gunnarson, Albanoski learned that Broadnax was concerned about more than the alleged threat of harm to herself. She also alleged that employees had touched children's genitals improperly.
Broadnax had provoked an investigation of the center a year earlier, after talking to parents who said they felt their children were discriminated against because they were minorities. Broadnax also said she had seen the then director of the center hit a child in the mouth, making him bleed.
In a telephone interview from her home in Alabama, Broadnax told me she had complained many times about problems at the center during the four years she worked there "but just gave up. Nobody seemed to be concerned. I ended up having a nervous breakdown over that."
"Right before I left, I saw a woman beat a kid until he just threw up," she said "I did all I could to get something done about that. They removed her, but she was back working there after I left."
Capt. Robert J. Meyer was appointed to look into the allegations for the commander of the Presidio in a letter summarizing his findings, Meyers said, "at least three of the Child Care Center staff have been threatened with the loss of their jobs if they speak out and tell the truth about how the Child Care Center is being managed and how the minority children are treated." A hearing was held at the Presidio on the allegations in 1981. The director in question was reinstated.
The next year, when Albanoski reported the sex abuse allegations to Presidio officials, he was told "to stop any investigation I was told there was nothing to look into, that Gunnarson would be dealt with through his command channels ." Military Police Investigator's Report No 00193-82/MP1026-82-047, dated Feb. 4, 1982, was filed on the incident. Albanoski held on to a copy of that report. He sensed that it might be important some day.
The Army didn't take it quite so seriously.
"That particular case was not known to any of us in the chain of command," current Presidio Commander Joseph V. Rafferty said last December. "Mr. Gunnarson had one of the finest reputations in the Army with respect to running a child care center."
A year after he was arrested, Gunnarson was cited in an inspection report by officials from the US Army Forces Command for "doing an excellent job as the Child Support Services Coordinator. The staff training program he developed utilizing the Military Child Care modules is model for the Army."
But allegations of abuse at the day care center would persist.
Former Army Capt. Gary Boswell approached Gunnarson in April 1985 after picking up his daughter at the day care center.
"She had a red spot on her hand, where she had been burned. She said, 'the teacher burned me.' This girl was taking the kids and taking a magnifying glass and holding their hands until they jerked their hand away and cried," said Boswell, who now works as a civilian employee at the Presidio. "I went to see Gunnarson and wasn't terribly pleased. He said he'd look into it. We came back, the next day and he said he had talked to the person, that there were no eye witnesses and 'it's your daughter's word against hers, so we can't do anything' we took our daughter out of the day care center a short time later."
Sue Dorsey contacted Gunnarson in June of 1986 to complain about an abuse incident she says she witnessed.
Dorsey, the wife of Army Capt Tom Dorsey, a physician, said she had just dropped her daughter off at the day care center and was walking out of the building when she noticed "a woman on her hands and knees, bent over, putting her hand's in a little girl's pants." "The woman took her hands out from the little girl's pants and put them under the little girl's top and tickled her on both breasts and then went back down into the pants into the vaginal area and tickled her there."
After relating the incident to the assistant director of the center, Dorsey said she was told that the woman Dorsey had seen with the little girl "was just playing innocent tickling games"
Dorsey went to Gunnarson who, she says, replied "So what you're telling me is that she tickled the little girl on her private parts." Dorsey returned home and called Gunnarson later in the day. "He said, 'I'm going to write something up in her personnel file'"
Finally, after further calls to the captain who supervised the civilian employees at the center, Dorsey was told that the Army's Criminal Investigation Division would investigate the case. .
The investigation, Col Rafferty was later to say, "proved that it could not be substantiated that abuse had occurred... From my understanding of the actual touching involved, there was a question of just exactly what was clearly a tickling type of incident that could be interpreted in a couple of different ways. I suspect the investigators took the care-givers' interpretation of what that was.
A year later, Dorsey learned that her own daughter had been sexually abused at the center.
DORSEY AND THE OTHER PARENTS WOULD also learn that there had been sex abuse cases involving day care centers at several other Army bases. West Point was one of the most serious --until the Presidio. In July 1984, a 3-year-old girl was brought to the emergency room at West Point Hospital with a lacerated vagina. The child told the doctor who examined her that a teacher at the West Point day care center was the one who hurt her. In August, another parent came forward. By the end of the year, 50 children had been interviewed by investigators.
Children at West Point told stories that would become horrifyingly familiar. They said they had been ritually abused. They said they had had excrement smeared on their bodies and been forced to eat feces and drink urine. They said they were taken away from the day care center and photographed.
Some parents alleged that the Army tried to cover up the cases. "The whole underlying theme was that the image of West Point was more important than dealing with the reality of what happened," said Dr. Walter Grote, whose 2-year-old daughter was among the children allegedly abused at the center.
Grote is now in private medical practice in New Jersey. A former Army captain, he turned down a promotion to major in 1984 to protest the Army's handling of the day care case at West Point. He was well aware that the problem at the Point had started long before.
In August 1983, nearly a year before the sex abuse case broke, a 22 month-old child had been murdered by the mother's boyfriend, an Army staff sergeant. After a court martial hearing, the sergeant was given an 18 month suspended sentence and dishonorable discharge.
Col. Richard C Eckert, a doctor then in charge of West Point's Child Protection Case Management Team, was outraged at the leniency of the sentence. In an Aug. 1, 1983, letter to Lt. Gen. Willard Scott, Jr., then superintendent of West Point, Eckert wrote, "The community has received a devastating message--West Point and the Army take child abuse lightly and do not consider it a major offense."
The guy that murdered the 22 month-old baby was let off Scot free," said Dr. Pat Jones, a former pediatrician at West Point now in private practice in Texas. "They just kicked him out of the Army to prevent any publicity."
Jones, who believes his 15 month old daughter was sexually abused at the center at West Point, was so outraged he resigned from the Army. "I tried to resign from the alumni association I feel ashamed for even being from that place."
No indictments were returned in the West Point cases.
Fort Dix was next in July, 1986, two female employees were accused of sexually abusing four 3-and-year-old girls. No indictments were returned in the case, and the women returned to work at the day care center. Then Fort Leavenworth, Kan. And Fort Jackson, S.C. By November, 1987 the Army had received allegations of child abuse at 15 of its day care centers and several elementary schools.
There were also at least two cases in Air Force day care centers. And at a day care center run by the Navy in Philadelphia, a civilian was sentenced to three years in prison for sexually abusing children.
The Department of Defense decided in April 1987 to form special strike teams to investigate sex abuse cases in the military. The goal of the teams "is to not let things get any worse," says Bob Stein, director of the Military Family Resource Center at the Department of Defense. "We need to be better prepared to deal with the magnitude of the problem. I don't think anybody was prepared" at the Presidio or West Point.
Despite the military's official stance of preparedness, a new horror surfaced in June 1988 when a special team of experts was sent to Panama to help determine if as many as 10 children at a Department of Defense elementary school had been molested and possibly infected with AIDS by a teacher who is dying of the disease.
Although the allegations of ritual abuse made by children at West Point and at the Presidio were similar, "we may never totally resolve whether there is any kind of external organization [of abusers] or if just a single pedophile" was involved in those cases, said Col. Jim Schlie, deputy director of the Military Family Resource Center.
But some of the allegations made by children at the Presidio, that they were taken to houses on - and off-post by men and women--led to investigation of the possibility that there was an "external organization" in San Francisco. INSIDE A CONCRETE BUNKER BEHIND THE MILITARY Intelligence Building at the Presidio, the words "Prince of Darkness" are painted boldly in red on one wall. Used decades ago to house artillery guns, the reinforced concrete batteries appear to have been converted to something like ritual chambers.
Emblazoned next to the "Prince of Darkness" is the word "Die," and what looks like a list of names, painted in red, that have been crossed out with heavy black paint. One wall is covered with the numerals 666, a sign of the devil, and occult drawings. A clearing in the center of the concrete floor, where the ground is exposed, is filled with refuse and partly burned logs. On the front wall beneath the window that faces the Military Intelligence Building is a huge pentagram inside a circle. In the rear, where sunlight gives way to darkness, white and black candle drippings sit atop a dome shaped recession in the wall, apparently a crude altar. Incense sticks lie half burned to the side.
At another battery farther up Lincoln Boulevard, a large drawing of Satan, with red eyes and horns appears on an outside concrete wall. Doors to the battery are secured shut; there are no windows to climb though. No entry is possible here. It would be easy to dismiss the satanic graffiti as the pranks of adolescents, taking advantage of the isolated bunkers to play new versions of "Dungeons and Dragons." But events in the Presidio case suggested something more sinister could have been involved.
Satanic goings-on are not new to the Presidio. In the early 1980's, when he was an MP at the Presidio, Albanoski recalls, "We got a call from the Portola MacArthur housing area. One person reported a man dressed in black holding a little girl's hand running toward the park. Another call came in saying they heard screams near the creek."
The search led to a gardener's shack at Julius Kahn Park, a strip of city-owned playground adjacent to the Presidio, behind the housing area. "We heard noises coming from inside," Albanoski recalls. "We kicked the door open and here's this nice little bedroom. In a corner was a mannequin with a gun aimed at the door. On the left side there was a bunk against the wall. There was a pentagram on the floor, a huge one. There were dolls' heads all over the ceiling, just off-the-wall stuff." Music was blaring from a radio.
Albanoski and another MP were given approval to set up surveillance of the shack. After a while, the investigation was called off. "We were sitting there, we've got a cult on the Presidio of San Francisco and nobody cares about it," Albanoski says. "We were told by the provost marshall to just forget about it". Though Albanoski's investigation went nowhere, the child abuse cases would raise the specter of Satanism again.
Larry and Michelle Adams-Thompson had noticed changes in their daughter's behavior after placing her in Gary Hambright's class four or five times in September and October of 1986. The girl, who turned 3 in October, had begun having nightmares and would wet herself when frightened. Her parents believed it was just "a bad stage" she was going through until they heard about the Tobin boy in January. The girl was taken to a therapist at Letterman Army Medical Center in February. In therapy, the girl talked about being sexually abused by Hambright and by a man named "Mikey" and a woman named "Shamby" whose identities were unknown. On Aug. 12, 1987, the Adams-Thompsons were shopping at the PX at the Presidio. Suddenly the girl ran to Larry Adams-Thompson and clutched his leg. He looked up and saw a man whom he knew as Lt Col. Michael Aquino.
"Yes, that's Mikey," the 3-year-old told Adams-Thompson. After being taken outside, the girl added, "he's a bad man and I'm afraid." As they were leaving the parking lot, the Adams-Thompsons saw Aquino's wife, Lilith. Larry asked the child if she knew the woman.
"Yes, that's Shamby," the girl said.
The family went home and called the FBI.
When interviewed by authorities the next day, the girl identified Gary Hambright from a photo lineup and said she had been driven to Mikey and Shamby's home by Hambright. There, she said, she was abused by Hambright, Mikey and Shamby in a room with black walls. She said that she had been photographed. She said Hambright and Mikey were dressed in women's clothes and Shamby was dressed in man's clothes.
The investigators drove her to Leavenworth Street in San Francisco. The girl was asked to identify any of the houses that she had been to before. While walking past 2430 Leavenworth, the girl identified the house as the one where she met "Mikey" and "Shamby." It was the Aquino's' house.
A search warrant was served on the Aquino home on Aug. 14. In attendance were agents from the FBI and the San Francisco Police. Because the abuse allegedly occurred on city property, it was to be a city case.
Among the items seized were video tapes, cassette tapes, notebooks with names and addresses, two photo albums one paper plate and two plastic gloves from the kitchen garbage, four plastic cases of negatives and 29 photos of costumes and masks. With his widow's peak and arching eyebrows, Lt Col. Michael Aquino looks more like a pudgy Dracula than a high ranking Army officer with top security clearance. He is the founder and high priest of a satanic church, the Temple of Set. His wife, Lilith, a gaunt woman with long, dark hair, is a priestess in the temple's Order of the Vampyre. The couple refer to the search as a "raid" and have branded the investigation a witch hunt.
"The Army has known about my religion for the last 18 years and has no problem," Aquino told me in a telephone interview late last year. "Not one single person in the US. Army, with the exception of the chaplain, would have the remotest notion that I would be involved in anything like this."
Indeed, Army spokesmen at the Pentagon label his military career as "extraordinary" and say he is entitled to his religious beliefs. As for his top security clearance, they say his openness about being a Satanist makes him much less of a security risk than a homosexual or someone with drug or money problems would be.
The Army did not suspend his clearance when he joined the Church of Satan, founded by Anton LaVey, in 1969. Nor when Aquino founded his own satanic church in 1975. Nor when Aquino while on a NATO tour of Europe in 1982 performed a satanic ritual in the Westphalian castle that had been used as an occult sanctuary by Heinrich Himmler's SS elite in Nazi Germany. Nor did the Army move to suspend Aquino's top security clearance during the sex abuse investigation. "The nature of the investigation that prompted the search of his house, and I understand some of his belongings were taken by police, really is a question for the San Francisco Police Department," Maj. Greg Rixon, spokesman at the Pentagon said Aquino, who now works as a program analyst at the Army Reserve Personnel Center in St Louis, has vehemently denied ever meeting or having in his house the young girl who has alleged he abused her. He unsuccessfully tried to have court martial proceedings initiated against Adams-Thompson.
In a Temple of Set newsletter sent out two months after the search of his home, Aquino accused Adams-Thompson, who is an assistant chaplain for the Army, of trumping up the allegations as some sort of Christian vendetta "Also relevant is his profession as a Christian clergyman; I certainly doubt that he would have made such an outrageous accusation against any Lieutenant Colonel who was not known to be a prominent Satanist"
In April, Aquino wrote a four-page letter to the head of a children's advocates group in Southern California warning that "we do not intend to see a replay of what happened in Nazi Germany, when the reluctance of the Jews to challenge those who systematically and falsely accused Judaism of heinous crimes-including the sexual abuse and ritual murder of Christian children- led to violence against them."
Aquino said that the Temple of Set neither prescribes nor tolerates any form of harm, sexual or otherwise, to children or animals. "It is made clear in our membership publications that, should we have any reason to think that a member is engaged in any such activity, he or she will be immediately expelled and reported to the appropriate law enforcement or animal-protection authorities."
In a February appearance on the Oprah Winfrey Show this year, Aquino said that Satanists "are not servants of some God; we are our own gods; we are our own decision makers. And people naturally fear this." Their beliefs, he said, are "most closely aligned to that of Plato."
Neither Aquino nor his wife has been charged in connection with the case. San Francisco Police completed their investigation of the Aquinos in June and submitted their findings to the San Francisco District Attorney's Office. A decision on whether any charges would be filed was pending when this story went to press.
Now stationed at another post, the Adams-Thompsons say their daughter's nightmares and bed wetting have stopped. And they say their daughter has not given up.
"She still believes that some day some judge will hear all the facts and do right by her," Michelle Adams-Thompson said "A lot of people were not as brave as her."
AT 4:45 A.M. ON SEPT. 22 1987, A CALL came in to the Presidio Fire Department. A building in the complex of structures at the Presidio that houses the day care center was on fire. By the time parents started dropping their children off at 7 a m, the $500,000 blaze had been extinguished. The Army Community Services Building adjacent to the day care center, which housed some of the center's records, had been demolished. Perhaps only coincidentally, the fire occurred on the autumnal equinox, a major event on the satanic calendar. An investigation of the fire by the Army blamed the blaze on a faulty wire outlet
Three weeks later, fire struck again, this time at the day care center itself. The fire was reported at 4:30 am. It caused $50,000 damage to a day care center building that housed four classrooms, including Hambright's.
Now faced with two fires, the Army called in the Bureau of Alcohol, Tobacco and Firearms for help. Investigators found that both fires, contrary to the Army's finding, had been arson. They also found cinders under a building, evidence of a third attempted but unsuccessful fire at the center. The Army later offered a $5,000 reward for information on the fires. There have been no takers.
On Sept. 30, eight days after the first fire, and six months after the original charges had been dropped, Gary Hambright was reindicted on molestation charges involving 10 children. He was charged with 10 counts of lewd and lascivious conduct on a child and two count of oral copulation. The indictment included the Tobin boy but did not include the original charge of sodomy.
That day there was much backslapping at a press conference called by US Attorney Joseph Russoniello to announce the charges. A press release said the maximum penalty that might be imposed in this case is 96 yeas in prison and a $3 million fine.
Surrounded by Army brass from the Presidio and several FBI agents, Russoniello said there would be no more arrests; despite the children's allegations, there were no other suspects. But even Gary Hambright appeared to suggest that others had been involved. At a press conference Oct. 2 after he was arraigned, Hambright, reading from a prepared statement, said he was innocent of all the charges and added, "I cannot understand why these allegations and falsehoods have been, directed solely at me."
Geoff Hansen, the assistant federal public defender who represented Hambright, refused to allow his client to answer any questions, a policy unbroken throughout the long months after the indictment Hansen denied, however, that Hambright was referring to anyone else.
The parents had many questions about the new indictment. Why only those children? Why only one child on the indictment who had medical evidence? Why did the indictment not include the children with such medical evidence as missing hymens and rectal lesions? And why were the charges so vague?
Rather than specifying the actual crimes allegedly committed on the children, 10 of the 12 charges were committing lewd and lascivious acts. The other two charges, involving the Tobin boy and the boy who was abused on his birthday, were oral copulation. Hambright no longer was charged with raping the Tobin boy
The Tobin boy, the only child with medical evidence on the indictment, was included because he had been examined by CASARC, by a non-Army doctor off post. Cooperation between the Army and the U. S. Attorney had been weak from the beginning. The cases of chlamydia could not be used as evidence because the right kind of culture, had not been taken at Letterman Army Medical Center. When one couple called the US Attorney's Office to ask if they should take their children for another culture, the answer was no.
Assistant U. S Attorney Peter Robinson, who had been brought in by then to assist Susan Gray, said those 10 children had been chosen from the more than 60 victims because they would make the best witness.
In February, Assistant US Attorney Gray, now teamed with Assistant US Attorney Eb Luckel, asked that charges involving four of the children be dismissed because of problems with the children's testimony. Later in the month, Judge Schwarzer dismissed all but one of the remaining counts because the charges were too vague. Gray and Robinson had submitted a two page document listing a series of dates on which the abuse allegedly occurred for each child but did nothing further to spell out the accusations.
The only remaining witness on the indictment, the Tobin boy, was removed from the case a short time later on the advice of the boy's therapist.
Gary Hambright was a free man - again
THE STRATEGY FOR A SIMPLE pedophile case had failed again. Gray, the daughter of a district court judge, had never before handled a child sexual abuse case. The Presidio case, in fact, was believed to be the first such case handled by the US Attorneys Office in San Francisco. Gray had worked long and hard on the case but confined her efforts to the law library. Nether Gray nor anyone else in the U. S. Attorney's Office saw the need to hire experts on child abuse cases until about two months before the end. There had been a telephone consultation with Dr. Roland Summit, an associate clinical psychiatrist at Harbor-UCLA Medical Center and a consultant in major sex abuse cases around the country.
"I reviewed some early documents in the case," Summit said "On the basis of the documents, they didn't want to go to court. There were too many allegations of weirdness and ritual without enough corroborating evidence. It is that kind of thing so far that is fatal to effective prosecution."
Summit, who has consulted on a number of ritual abuse cases, said the failure in such cases is "a scandal ... that we have to see some sort of material proof to get any sincere concern to what 300 to 500 children have sworn in the midst of terror was real. If you had 300 adults in any circumstance, wherever they were assembled, who would describe this same phenomenon, nobody would want to believe it, but I don't think the justice system could possibly be that indifferent.....
"The smart money for any attorney is to stay away from it and try to sneak through by selecting witnesses who don't talk about it. Are you going to put somebody in jail on the word of a little kid?"
Failure to consult with abuse experts haunted the case. By the time the children had been in therapy long enough and felt comfortable enough to talk about some of the more bizarre aspects of the case, Gray was adamant that she could not take such things before a jury. "She sat right here on that couch and said she couldn't take that before a jury," said one mother.
Gray has refused to discuss the case.
Her colleague, Assistant U.S. Attorney Luckel, said the case fell apart at the end because "in the final analysis, when we reviewed the cases we had where there was a child who was prepared to go to court and was prepared to tell us what happened and describe something that actually occurred at the Presidio, as opposed to off-base, there was not much to consider."
According to Luckel, the US. Attorney's Office had decided that federal jurisdiction in the case ended at the boundaries of the Presidio. That meant that even though some of the allegations involved children being taken off post by Hambright, they were not to be part of the federal case. "When we got right down to it, there were just a couple of possible cases where federal jurisdiction existed," Luckel said. "Our decision was that we could only prosecute for acts that occurred at the Presidio."
Since San Francisco Police concentrated their efforts on investigating Aquino, that meant that many of the children's allegations fell through the legal cracks. More than 60 children were sexually abused but not at the right location.
So is the Presidio case closed? "We would not reopen it absent the discovery of new evidence," Luckel says. The statute of limitations for this case is five years.
ON APRIL 19, THE ARMY HELD AN OPEN house for a new $2.3 million day care center at the Presidio. That same day, several parents held a press conference to protest the closing of the federal case.
"We feel that it is vitally important that parents everywhere realize these things really happen.," they said in a prepared statement, "Cases such as this are being successfully prosecuted across the country at the state level. Why have Mr. Russoniello and the entire federal system failed to learn from these successes?" Referring to the victims, the parents said, "All have made statements that they were abused, they have psychological evidence of abuse and many have documented medical evidence of sexual abuse, including rape, sodomy and venereal disease."
The criminal case is closed, but by June, the parents of 23 children had filed $55 million in claims against the Army, the first step toward filing a civil suit against the government alleging negligence that led to the abuse.
Last December, the Army reassigned several people connected with the case, including Lt. Col. Walter Meyer, the director of personnel and community activities and John Gunnarson the director of child development services responsible for supervising the day-to-day operations of the center. Diana Curl, the day care center director, resigned. In late June, Gary Hambright was "still trying to decide where he wants to settle," said assistant federal public defender Nanci Clarence, one of Hambright's attorneys Clarence said he is "in and out" of San Francisco.
The case that so many did not want to believe is still very much alive in the nightmares and sexual acting out that continue for many children, in the jarring statements that come suddenly out of nowhere, such as the 4 year old girl who sat at her kitchen table a few months ago and told her mother she wanted to kill herself with a knife. Others say they hate themselves. One 6-year-old girl was playing with modeling clay at school one day when she suddenly started stabbing it. "Mr. Gary is bad and I'm bad because I let him do it," she told her teacher.
"People keep telling us we've got to let it go just forget about it and go on," said parent Gretchen Runyan. Two of the Runyans' four daughters were among the victims, both had confirmed cases of chlamydia.
"Three weeks ago, our youngest daughter was having nightmares and our other daughter was closing out the whole world, going to her room and sitting there, with no radio, no TV, no nothing. Tell me it's over."
MEMORANDUM IN SUPPORT OF DEPENDANT'S MOTION FOR JUDGMENT ON THE RECORD
STATEMENT OF THE CASE
This is an action brought pursuant to the Privacy Act of 1974, 5 U.S.C. S 552a(g), in which plaintiff alleges that the U.S. Army Criminal Investigation Command (CID) has refused to amend a Report of Investigation (ROI) which states that plaintiff was the subject of an investigation for sexual child abuse and related crimes. Plaintiff seeks to remove his name from the title block of the investigation, he seeks damages for the alleged willful and intentional misconduct of the Army for refusing to accurately maintain this record, and he seeks attorney fees and costs. Defendant United States Army seeks dismissal of plaintiff's Privacy Act complaint and judgment on the administrative record denying plaintiff's requests. First, plaintiff has failed to state a claim under the Privacy Act because these criminal law enforcement records are exempt from the amendment provisions of the Act. Second, plaintiff has failed to carry his burden of showing that defendant acted arbitrarily or capriciously in refusing to delete plaintiff's name from the report. And finally, even if plaintiff's claim was reviewable under the Privacy Act, it should be denied because plaintiff has failed to show that the report is inaccurate. Consequently, the court should not award damages, attorney fees or costs.
STATEMENT OF THE FACTS
1. Plaintiff Michael A. Aquino is a Lieutenant Colonel (LTC) in the United States Army Reserve. His name appears in the title block of a CID report of investigation (ROI) for indecent acts with a child and related offenses. Government Exhibit (G.E.) D at 1-4.
2. Kinsey Marie Adams-Thompson appears in the victim block of the same report. G.E. D at 1-4. Kinsey is the daughter of Captain (CPT) Larry Adams-Thompson and Michelle Adams-Thompson. Kinsey was born on September 1, 1983, and attended the Child Development Center (CDC) located on-post at the Presidio.
3. On January 14 and 15, 1987, Kinsey and her parents were interviewed by a Federal Bureau of Investigation (FBI) agent about allegations of child abuse at the CDC. (F1) G.E. G-2 (FBI Interviews) at 1-3. On January 20, Kinsey was interviewed by Doctor Deborah L. Hickey, M.D., a child psychiatrist and Army doctor (LTC) at the Presidio. Kinsey told LTC Hickey that "Mr. Gary" had sexually molested her by touching her genitals and putting his penis in her mouth. Id. at 4-5.
4. On August 12, 1987, Kinsey was at the Presidio Post Exchange (PX) with her parents. At about 4:00 P.M., as they walked through the store, Kinsey ran to her parents, frightened, and told them that she had seen "Mikey" from "Mr. Gary's house." Kinsey's mother picked her up and Kinsey pointed at plaintiff, LTC Michael Aquino, and identified him as "Mikey." Kinsey said she was afraid and wanted to leave the store. CPT Adams-Thompson recognized LTC Aquino from his prior assignment at the Presidio. (F2) He took Kinsey from Mrs. Adams-Thompson and carried her out of the store to the parking lot. When the Aquinos exited the store, Kinsey identified Mrs. Aquino as "Shamby," another person who she saw with "Mr. Gary." After returning home Kinsey said that she was afraid that "Mikey" and "Shamby" would come to her home and hurt her. Id. at 7-10.
5. FBI Agent Foreman interviewed Kinsey at 9 P.M. the next day, August 13th. She told him that "Mikey wears Army clothes like my daddies [sic]", and that "Mikey" put his penis into her mouth, bottom, and vagina just like "Mr. Gary." Kinsey also told FBI Agent Foreman that she went with "Mr. Gary" to his house and "Mikey" and "Shamby" were there. Id. at 9. Kinsey told her mother that "Mikey" was the "blood man," because he had put blood on her and licked it off. Id. at 8. Mrs. Adams-Thompson also recalled that Kinsey had described "Mikey" as having "eyebrows that went up." Id. at 7. 6. Plaintiff's appearance is distinctive. His eyebrows curl upwards, his hairline is marked by a prominent widow's peak, and his black hair is combed straight back. See photographs, G.E. E-48 and G.E. E-5. Plaintiff acknowledges that this is his appearance. G.E. E-5, para.10. In addition to the identification at the post exchange, Kinsey identified plaintiff out of a five-person photo line-up and video line-up. G.E. D-9 at 100.
7. After Kinsey's interview, she was taken to the vicinity of plaintiff's house, which is about two miles, a seven-minute drive, from the CDC. G.E. D-5 (Crime Scene Examination) at 65. Accompanied by her mother and two investigators, and starting about one and a half blocks from plaintiff's house, Kinsey walked down the street where plaintiff lives. Upon approaching plaintiff's house, Kinsey appeared frightened and asked to be held by her mother. After being picked up she continued to stare at the front of XXXX Leavenworth Street, where plaintiff lived. Kinsey said that the area was familiar and she had been there before. When asked if this was "Mr. Gary's" house, she answered yes, and stated that "Mr. Gary" had driven her there, where she met "Mikey" and "Shamby. G.E. E-1 (SA Potter's Report); G.E. D-4 (Interview of Victim) at 59.
8. CPT Adams-Thompson reported the PX identification and Kinsey's statements to the San Francisco Police Department (SFPD) and, based on this evidence, a magistrate determined that probable cause existed to issue a search warrant for the top apartment at XXXX Leavenworth Street, plaintiff's residence. G.E. D-5 (Crime Scene Examination) at 65, G.E. E-5 (SFPD Incident Report dated August 14, 1987, following Aquino statement dated January 4, 1988). During the search the FBI photographed the interior of the apartment and some weapons, masks, and ceremonial items observed there. G.E. E-3. The three other apartments in the house and the house next door at XXXX Leavenworth Street were not searched, although later investigation disclosed that plaintiff owned both buildings. G.E. D-19 at 119.
9. The photographs were shown to Kinsey on October 15, 1987. Her reactions are recorded in G.E. G-2 at 11-14. Although Kinsey's reactions to the photographs are not conclusive, the photographs do show a number of items that corroborate Kinsey's and other children's descriptions of the house where they were taken: (1) masks; (2) guns; (3) toy animals or dinosaurs; (4) a lion picture on the wall and lions on the Egyptian throne; (5) a computer; (6) cameras; (7) a black room with soft walls; and (8)a robot. G.E. E-38 (Excerpts of Kinsey's Medical Records) at 31, 32, 38; G.E. D-14 at 109; G.E. D-2 at 22.
10. One of the items seized by the SFPD during the search was a notebook. G.E. D-5 at 65. That notebook contained the name "Mike Todo." G.E. D-14 at 109. Kinsey and another child mentioned "Todo" as one of the persons at "Mr. Gary's" house. G.E. D-19 at 120. During an April 7, 1987 interview with MAJ Hickey, months before the PX identification, Kinsey stated that "Shamby" and "Sassy" were the same person, and that "Sassy" was "Todo's" girlfriend. G.E. D-2 at 21, G.E. E-38 at 31 (as numbered at page bottom). In the days that followed, the San Francisco Police Department and the FBI continued as the lead investigative agencies.
11. On January 3, 1988, plaintiff made a written sworn statement denying the allegations against him and preferring sworn charges against CPT Adams-Thompson for conduct unbecoming an officer. He charged that CPT Adams-Thompson made false statements by reporting the Kinsey's allegations of child abuse, and that CPT Adams-Thompson mailed an obscene postcard to plaintiff (a picture of a male transvestite stating "Blow it out your ass. You pompous jerk!").G.E. E-5. Plaintiff later withdrew the charge regarding the postcard after plaintiff learned that CPT Adams-Thompson and his family had already moved to Hawaii before the date the postcard was mailed. G.E. D-1 at 10.
12. Based upon these sworn charges against CPT Adams-Thompson and other statements made by plaintiff as the investigation continued, CID investiated plaintiff for false swearing. Specifically, plaintiff falsely stated that Kinsey was two years old in October 1986 when she was in fact three. G.E. E-5; G.E. D-1 at 10...Plaintiff admitted that he incorrectly stated Kinsey's age, but claimed it was a mistake. G.E. D-6 at 72. Plaintiff also stated that he had "never used or been known by the nickname 'Mikey'." G.E. D-5 at 2. In addition to the children's identifications of him as "Mikey," however, Mr. Anton LaVey, a friend and associate, referred to plaintiff as "Mikey." G.E. D-2 at 37; G.E. D-7 at 85. Plaintiff made other statements controverted by evidence, including that only three people had access to the security code to his upper apartment, and that he had never been to the CDC. Plaintiff's Exhibit (P.E.) 2 (Defendant's Response to Interrogatory 12); G.E. D-2 at 28-37.
13. On August 12, 1988, the San Francisco district attorney's office closed its investigation of child abuse at the Presidio CDC. It filed no charges against plaintiff or anyone else. G.E. E-6 at 7. In September 1988, CID investigators met with representatives from the SFPD, the local district attorney's office, the U.S. Attorney's Office, and the FBI to discuss the status of the investigation. P.E. 2 (Defendant's Response to Interrogatory 15) at 27-30.
14. On October 17, 1988, at the request of CID Special Agent (SA) Petaluna, the local Army investigator, MAJ Mark Harvey drafted an Investigative Plan for plaintiff's case. The memorandum discussed plans for continuing the investigation of plaintiff in light of the completion of the SFPD investigation and the perceived weaknesses in that investigation. G.E. G-3 (CID Investigative Plan). On October 26, 1988, Wayne Boyles III, Legislative Assistant to Senator Jesse Helms, wrote a letter to the Secretary of the Army complaining about plaintiff's appearance on a Geraldo Rivera television show about Satanism and witchcraft. P.E. 1, Exhibit G. The CID investigation of plaintiff was underway before any involvement by Senator Helm's office.
15. On April 7 and 8, 1989, the CID interviewed Kinsey. After viewing a photographic line-up, she identified plaintiff as "Mikey," but did not pick out Mrs. Aquino as "Shamby". After viewing a video line-up Kinsey again identified plaintiff, and again did not identify Mrs. Aquino as "Shamby" G.E. D-9 (Identification Line-ups) at 100-101. Kinsey stated that "Shamby" and "Mr. Gary" took her to "Mr. Gary's house," and that "Mikey" was there. She described the house as blue-gray in color, the same color as plaintiff's house at XXXX Leavenworth Street. G.E. D-4 at 59-60.
16. On May 11, 1989, Kinsey was reinterviewed by CPT Boomer and MAJ Harvey, judge advocates at the Presidio. She said that "Mikey" told her to touch "Mr. Gary's" penis and that "Mikey" forced her to stay in the room with soft walls, and blocked the door so she could not leave. She stated that she had found the house with FBI Agent Foreman and that the house was blue and gray. Id. at 60-61.
17. On May 15, 1989, CID agents and legal advisors met with LTC Craig Schwender, Staff Judge Advocate for the Presidio, and viewed the investigation and evidence with him. LTC Schwender opined that there was probable cause to title LTC Aquino for the offenses of indecent acts with a child, sodomy, conspiracy, kidnapping, and false swearing.(F3) G.E. D-16 at 113.
18. The final Report of Investigation (ROI) was issued on August 11, 1989. G.E. D at 1-4. On January 4, 1990, MAJ Harvey spoke with the staff judge advocate at Fort Leonard Wood, MO, to determine what action the Commander of Fort Leonard Wood had decided to take in the case. The commander took no action against plaintiff as a result of the investigation. G.E. B at 3.
19. On January 30, 1990, plaintiff appealed the titling determination to Major General (MG) Eugene L. Cromartie, Commanding General, U.S. Army Criminal Investigation Command, pursuant to Army Regulation 195-2.(F4) He asserted an alibi defense: that he was not in San Francisco on the dates of the alleged offenses. He also alleged there was insufficient evidence of some of the offenses; that the titling was a result of improper political influence from Senator Helms; that there was improper conduct by members of the Judge Advocate General's Corps, the Office of the Surgeon General, and the CID; that the SFPD and FBI investigations resulted in no prosecutions; that the CID investigation was stale; and that the statute of limitations had run and no charges were contemplated by the command.
(Edit note-No. 20 is missing)
21. Plaintiff's amendment request was reviewed internally by the CID Staff Judge Advocate, and by the Chief of the Criminal Law Division of the Office of The Judge Advocate General, Colonel (COL) Francis A. Gilligan. COL Gilligan recommended deleting plaintiff as a subject for maltreatment of a subordinate, noncompliance with UCMJ article 30, and conduct unbecoming an officer. He also recommended deleting Mrs. Aquino as a subject for all offenses. G.E. C (Review of Amendment Request).
22. The Commanding General of the CID adopted COL Gilligan's recommendations on September 28, 1990. Plaintiff remains titled for indecent acts with a child, sodomy, conspiracy, kidnapping, indecent acts, and false swearing. G.E.B (lst Supplemental CID Report of Investigation) at 1.
23. Plaintiff filed his complaint in this court on November 15, 1990. The parties agree that the exhibits submitted to the court constitute the administrative record upon which the joint Motion for Judgment on the Record may be decided.
24. CID reports of investigation (ROI) are part of a system of records published in the Federal Register, in accordance with the Privacy Act, to inform the public of records the Army maintains. 49 Fed. Reg. 49,139 (December 18, 1984), 32 C.F.R. 505.5, 5 U.S.C. S 552a(e)(4). The systems notice specifies that CID ROIs are maintained to conduct criminal investigations and crime prevention activities. As such, 5 U.S.C. S 552a(j)(2) allows defendant to promulgate rules exempting CID ROIs from certain parts of the Privacy Act, which defendant has done. 49 Fed. Reg. 40,589 (Oct. 17, 1984), 32 C.F.R. S 505.5.
25. Army Regulation 340-21 implements 32 C.F.R. S 505.5 and exempts CID ROIs from the amendment provisions of the Privacy Act. (F5) Amendment requests are considered under Army Regulation 195-2, not under the Privacy Act.
26. Army Regulation 195-2 provides the exclusive means for handling requests to amend CID ROIS. Its amendment procedures are not part of the Privacy Act. The pertinent parts of the regulation provide that the individual has the burden of proof to substantiate the request. Requests to delete a person's name from the title block are granted if probable cause does not exist to believe that the individual committed the offense for which titled as a subject.(F6)
27. The legal standard for placing a person's name in the title block as the subject of an investigation, referred to as "titling," is set out in CID Regulation 195-1. It states that probable cause to title exists when the available evidence would cause a reasonably prudent person to believe that the person being investigated committed the crime.(F7)
I. Plaintiff Has Failed to State a Claim Under the Privacy Act Because CID ROIs Are Exempt From the Amendment and Civil Liability Provisions of the Act.
Under the Privacy Act's general exemption provision, the head of an agency may exempt law enforcement records from portions of the Act. 5 U.S.C. S 552a(j)(2). The Secretary of the Army has promulgated rules exempting CID reports of investigation from the access, amendment, and civil liability provisions of the Privacy Act, and explained why CID ROIs are exempt from these provisions of the Act. 32 C.F.R. S 505.5, ID-A0508.11aUSACIDC. The Fourth Circuit and other jurisdictions have recognized the S 552a(j)(2) exemption for law enforcement records. Ryan v. United States, 595 F.2d 954, 956 (4th Cir. 1979) (Justice Department regulations exempted system of records from access and civil liability provisions of Privacy Act); Wentz v. Department of Justice, 772 F.2d 335, 337 (7th Cir. 1985) (Justice Department regulations exempted system of records from amendment provisions of Privacy Act); Fendler v. United States Parole Commission, 774 F.2d 975 (9th Cir. 1985) (court properly dismissed Privacy Act claim to amend records exempt as law enforcement records under 552a(j)(2) and implementing regulations). Consequently, plaintiff has no Privacy Act claim.
II. Defendant Did Not Act Arbitrarily or Capriciously in Refusing to Remove Plaintiff's Name From the Title Block of the ROI.
The Army reviewed plaintiff's request to amend the CID ROI under AR 195-2, *not* under the Privacy Act. Thus, plaintiff's only remaining remedy is under the Administrative Procedure Act (APA), 5 U.S.C. 702. By its terms, the APA does not waive sovereign immunity from claims for monetary relief.(F8) See, e.g., Rhodes v. United States, 760 F.2d 1180, 1184 (llth Cir. 1984); Ghandi v. Police Dept., 747 F.2d 338, 343 (6th Cir. 1984); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1981); Jaffe v. United States, 592 F.2d 712, 718-19 (3rd Cir.), cert. denied, 441 U.S. 961 (1979). At most, plaintiff is entitled to injunctive-type relief based on a review of the Army's refusal to delete his name from the CID ROI title block. Plaintiff seeks de novo review, but plaintiff is not entitled to de novo review. De novo review is provided by the Privacy Act (F9) but amendment requests of titling determinations are exempt from the Privacy Act. De novo review under the APA is also not appropriate.(F10) In this case, the court should determine whether the Army's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. S 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 (1971). Moreover, this is the standard of review courts traditionally apply to the discretionary decisions of military officials. Fairchild v. Lehman, 609 F. Supp. 287 (E.D. Va. 1985), affld, 814 F.2d 1555 (Fed. Cir. 1987). See also Miller v. Lehman, 801 F.2d 492, 496 (D.C. Cir. 1986); Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986), Johnson v. Reed, 609 F.2d 784 (5th Cir. 1980). Under the "arbitrary and capricious" standard of review, the court should afford considerable deference to Army decision makers and limit its inquiry to determining whether the decision challenged was based on relevant factors and whether there was a clear error in judgment. Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983): Sidoran v. Commissioner, 640 F.2d 231 (9th Cir. 1981) The facts in the administrative record, particularly those cited in defendant's Statement of the Facts, support the conclusion that the CID decision not to remove plaintiff's name from the title block was not arbitrary or capricious. Kinsey made a certain, reliable identification of plaintiff in a non-suggestive setting, while shopping with her parents at the post exchange. She exhibited the fear and terror that one expects upon recognition of a threat or source of harm. Her earlier statements to the child psychiatrist and her mother about "Mikey" and "Shamby," persons until then unidentified, support the validity of the identification. Her description of plaintiff's facial features and her subsequent identification from a photo and video line-up also corroborate the identification at the PX. Kinsey identified plaintiff's house as the place where "Mr. Gary" took her from the Child Development Center, and where she saw "Mikey" in "Army clothes" like her father's. She also described the house's blue-gray exterior color. The photographs taken in plaintiff's apartment show masks, guns, toy animals, and ceremonial items that are similar to things described by Kinsey and other children. A notebook from plaintiff's apartment contained the name "Mike Todo," and "Todo" was one of the persons present at "Mr. Gary's" house. The evidence against plaintiff is credible and substantial. Army decision-makers did not act arbitrarily and capriciously or abuse their discretion in relying on this evidence to determine that a reasonably prudent person would believe that plaintiff had committed the offenses for which he was titled. That plaintiff has a different version of the events is irrelevant.
III. Even If Reviewable Under the Privacy Act, Plaintiff's Claims Should Not Be Granted.
As argued above, plaintiff fails to state a claim under the Privacy Act; therefore, the court should dismiss his claim. But, assuming arguendo that plaintiff's claims are reviewable under the Privacy Act, plaintiff still cannot prevail. Plaintiff seeks relief under the Act in three forms. First, he complains that the Army improperly refused to amend records pertaining to him by not deleting his name from a report of investigation for child abuse. Second, he seeks damages for this refusal to allegedly accurately maintain his records. Third, he seeks attorney fees and costs. Even if cognizable under the Privacy Act, probable cause exists to name plaintiff in the title block of this ROI; consequently, the court should not expunge plaintiff's name from the report, and plaintiff is not entitled to damages, attorney fees, or costs.
A. Plaintiff May Challenge Facts, But Not subjective Judgments Such As a Titling Determination.
Plaintiff is not entitled to relief because the proposed amendment pertains to the accuracy of subjective judgments and determinations, not to the accuracy of factual, historical data. Belvins v. Plummer, 613 F.2d 767 (9th Cir. 1980); Turner v. Department of the Army, 447 F. Supp. 1207 (D.D.C. 1978), aff'd, 593 F.2d 1372 (D.C. Circ. 1979). The determination of whether to list a person's name in the title block is a subjective, professional judgment, arrived at by assessing whether there is probable cause to believe that the person committed the offenses reported. The Sixth Region CID legal advisor, MAJ Mark Harvey, reviewed the investigation and authored the legal review segment of the report. G.E. D-2 at 16-57b. After discussing the evidence and reviewing the investigation, the Presidio staff judge advocate, LTC Craig Schwender, opined that probable cause existed to place plaintiff's name in the title block of the ROA. G.E. D-16 at 113. After plaintiff requsted that the report be amended to delete his name, the report was carefully reviewed by COL Francis Gilligan, the Chief of the Criminal Law Division in the Office of the Judge Advocate General. COL Gilligan recommended that plaintiff remain titled for indecent acts with a child and the offenses related to it, but also recommended that plaintiff be deleted as a subject for some other offenses and that plaintiff's wife be deleted from the title block. G.E. C. The commander of the CID, Major General Cromartie, concurred with COL Gilligan's recommendations and plaintiff remained titled. G.E.D at 2. The Privacy Act is not meant to provide a basis for collateral attacks on such judicial or quasi-judicial determinations recorded in agency files. Kennedy v. Andrus, 459 F. Supp. 240 (D.D.C. 1978) Only if all the facts underlying such professional judgments have been thoroughly discredited should the agency be required to revise or expunge it's prior professional judgment. R.R. v. Department of the Army, 482. F. Supp. 770 (D.D.C. 1980). Plaintiff has not thoroughly discredited the facts in this case. The facts set out in the administrative record show that the report of investigation pertaining to plaintiff is properly maintained.
B. Probable Cause exists to Name Plaintiff in the Title Block of the ROI
Plaintiff claims that the Army's refusal to remove his name from the title block of this child abuse criminal investigation violates the Privacy Act's requirement to maintain a record with "such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual. 5 U.S.C. 552a(e) (5). The Privacy Act provides that the court shall determine this matter de novo, 5 U.S.C. 552a(g) (2) (a); however, the burden of proof is on the individual. Mervin v. FTC, 591 F.2d 821, 827 (D.C. Circ. 1978). The primary issue is whether probable cause exists to believe that plaintiff committed the crimes for which he is named in the ROI. Plaintiff sought to amend his records in accordance with the agency procedures. AR 195-2, para 4-4. Under those procedures, plaintiff's name should be deleted from the title block only if the court determines that probable cause does not exist to believe that plaintiff committed indecent acts with a child and the related offenses named in the repeort. AR 195-2 para. 4-4. If probable cause does exist then the record is maintained with the accuracy "necessary to assure fairness." Doe v. United States, 821 F.2d 694, 699 (D.C. Cir. 1987). As discussed earlier, a review of the evidence in the administrative record and the facts set out in defendant's Statement of the Facts shows that probable cause exists to title plaintiff for indecent acts with a child, sodomy, conspiracy, kidnapping, indecent acts, and false swearing.
C. Plaintiff Is Not Entitled To Damages
Plaintiff seeks damages for the Army's alleged failure to accurately maintain his record, which allegedly resulted in an adverse determination against him. 5 U.S.C. 552a(g)(1) and (4). To bring a damages action under 552a (g) (1) plaintiff must show that (1) an inaccurate record (2) proximately caused (3) an adverse determination concerning him. See, E.g., Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989); Hubbard v. EPA, 809 F.2d 1, 7-10 (D.C.Cir. 1986); Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986); Clarkson v. IRS, 678 F.2d 1368, 1377 (11th Cir. 1982) (citing Edison v. Department of the Army, 672 F.2d 840, 845 (11th Cir. 1982). Additionally, an agency must have acted in an "intentional or willful" manner for a damages action to succeed. 5 U.S.C. 552a(g) (4). Only after meeting all of these criteria does the amount of damages become relevant. Plaintiff has not met these criteria and is not entitled to damages.
D. Plaintiff Is Not Entitled to Attorney Fees or Costs
In an amendment claim under the Privacy Act, the court may, in its discretion, assess attorney fees and litigation costs reasonably incurred, if the plaintiff "substantially prevails." 5 U.S.C. 552a(g)(2) (B). In a damages claim under the Privacy Act, the costs and reasonable attorney fees are recoverable by the "prevailing plaintiff." 5 U.S.C. 552a(g) (4) (B). Based on the foregoing arguments, plaintiff has not substantially prevailed in his amendment request and has not prevailed in his damages claim; therefore, the court should not award attorney fees or litigation costs.
For the foregoing reasons, the court should dismiss plaintiff's Privacy Act claim and deny plaintiff's requests for amendment, damages, attorney fees and litigation costs under the Privacy Act. The court should find the title block of the report of investigation was neither arbitrary nor capricious under the Administrative Procedure Act. Consequently, plaintiff is entitled to no relief.
F1. That investigation centered on Mr. Gary Hambright, a CDC employee. Plaintiff was not a suspect in the investigation.
F2. (Plaintiff and his wife were on leave at their home in San Francisco, before reporting to plaintiff's next assignment in St. Louis. Plaintiff had been assigned to the Presidio from August 10, 1981 until August 31, 1986. G.E. E-19.
F3. LTC Aquino was also titled for non-compliance with Uniform Code of Military Justice (UCMJ) article 30, 10 U.S.C. S 830 (1982), but this offense was later deleted. LTC Schwender also opined that there was sufficient evidence to title Gary Hambright for sexual abuse, conspiracy, and kidnapping, and to title Mrs. Aquino for sexual abuse, conspiracy, and kidnapping. G.E. F(Request to Amend Titling Determination); P.E. 1.
F4. Army Reg. 195-2, Criminal Investigation Activities, para. 4-4b (October 30, 1985)
F5. Army Reg. 340-21, The Army Privacy Program, para. 2-10e (July 5, 1985) provides: USACIDC reports of investigation (records in systems notices A0501.08e Informant Register, A0508.llb Criminal Information Reports and Cross Index Card Files, and A0508.25a Index to Criminal Investigative Case Files) have been exempted from the amendment provisions of the Privacy Act. Requests to amend these reports will be considered under AR 195-2 by the Commander, U.S. Army Criminal Investigation Command. Action by the Commander, U.S. Army Criminal Investigation Command, will constitute final action on behalf of the Secretary of the Army under that regulation.
F6. Army Reg. 195-2, Criminal Investigation Activities, para. 4-4b (Oct. 30, 1985) provides:
b. Amendment of CID reports. CID reports of investigation are exempt from the amendment provisions of the Privacy Act and AR 340-21. Requests for amendment will be considered only under the provisions of this regulation. Requests to amend CID reports of investigation will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof is upon the individual. Requests to delete a person's name from the title block will be granted if it is determined that probable cause does not exist to believe that the individual committed the offense for which titled as a subject. The decision to list a person's name in the title block of a CID report of investigation is an investigative determination that is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. His decision will constitute final action on behalf of the Secretary of the Army with respect to this regulation.
F7. CID Reg. 195-1, Criminal Investigation: CID Operations, Glossary-4 (1 November 1986) (Cl, I April 1989) provides: Probable cause to title a person or an entity in a criminal investigation exists when, considering the quality and quantity of all available evidence, without regard to its admissibility in a court of law, the evidence points toward the commission of a crime by a particular person or entity and would cause a reasonably prudent person to believe that the person or entity committed the crime. Probable cause must be distinguished from proof beyond a reasonable doubt, the latter being the evidentiary standard followed at criminal trials. The existence of probable cause to title is a determination made by the investigating organization.
F8. 5 U.S.C. S 702 provides in part: "An action in a court of the United States seeking relief other than money damages . . . shall not be dismissed . . . ."
F9. 5 U.S.C. S 552a(g)(2)(A).
F10. See 5 U.S.C. S 706(F). De novo review, or independent judicial factfinding, applies in only two limited circumstances. First, when agency action is adjudicatory in nature and factfinding procedures are inadequate. And second, when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory action. Citizens to Preserve Overton Park, 401 U.S. at 415; Camp v. Pitts, 438 U.S. 138, 142 (1973); Florida Power and Light Co. v. Lorion, 105 S. Ct. 1598, 1607 (1985). Plaintiff's suit does not seek enforcement of nonadjudicatory agency action; therefore, de novo review can only be had if the CID review of the amendment request was adjudicatory and the factfinding procedures are found to be inadequate. Because Army Regulation 195-2 does not mandate a hearing, the CID action on the amendment request does not fall within the APA definition of an adjudicatory proceeding. Serrano v. United States, 612 F.2d 525, 530 (Cl. Ct. 1979); International Telephone and Telegraph Corp. v. Local 134, 419 U.S. 428 (1975) (adjudication requires notice and hearing before administrative law judge). Furthermore, the adequacy of factfinding procedures is not the object of plaintiff's challenge. Accordingly, plaintiff may not obtain de novo review of the CID decision not to amend his titling determination.
F11. Despite plaintiff's contentions, this investigation was not a "witchhunt." Plaintiff was not targeted because of his religious beliefs. In fact, as plaintiff repeatedly points out in his voluminous submissions appended as part of the report of investigation, the Army has been aware of plaintiff's religious beliefs throughout his Army career and has not interfered with his religious practices. The sole reasons for this investigation and the CID decision to title plaintiff are the facts that point to plaintiff's sexual abuse of Kinsey Adams-Thompson.
F12. The fact that reasonable minds may differ over the conclusions reached does not mean that Army decision-makers considered inappropriate factors or made a clear error in judgment. See Motor Vehicles Mfrs. Ass'n. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983); Benvenuti v.Department of Defense, 613 F. Supp. 308, 311-12 (D.D.C. 1985), aff'd, 802 F.2d 469 (Fed. Cir. 1986) (court should not substitute its judgment for agency's). Clearly, the decision of Army officials to retain plaintiff's name in the CID ROI title block was neither arbitrary nor capricious. Plaintiff's request to delete his name from the report of investigation must be denied.
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