IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Angela M. Ehlers, et al., Plaintiffs, v. The United States Defendants, et. al., No.__________________

COMPLAINT On August 21, 2007, the Department of the Navy wrongfully Since

convicted Pvt Edwin A. Ehlers II of child sexual assault.

the conviction, it was discovered that NCIS and the prosecution withheld Muelenberg exculpatory falsely evidence; NCIS Special Agent Eric

testified regarding the alleged confession Several stand was

and fabricated evidence submitted against Pvt Ehlers. key prosecution the witnesses perjured herself themselves and perjured on

the

including

prosecutrix

evidence

submitted into court by the prosecution. At the Navy-Marine Corps Court of Criminal Appeals, Judge Maksym stated in his dissent of the conviction that the entire

proceedings carried a specter of reasonable doubt.

1

Judge Maksym

noted that he believed the childs parents, Petty Officer Paul and Stacey Skovranko, coached the child in her admissions

because of the vocabulary the child used at such a young age. These are the same observations that Randi Hester, a prosecution witness told NCIS in June 2004 and the prosecution days before the trial that she had witnessed Mrs. Stacey Skovranko telling the child to say Pvt Ehlers did this alleged act to her. Judge Maksym also noted that the delay in proceedings by the prosecution of over 3 years from the first report to the actual trial was key in his dissent since it was a violation of Pvt Ehlers Sixth Amendment rights to a speedy trial. The conformation bias on the part of investigators within NCIS perpetuated the manifest injustice to Pvt Ehlers and our family. I have, numerous times, contacted the Judge Advocate General, Commandant of the Marine Corps and others within the Department of the Navy showing the evidence of Pvt Ehlers innocence that was discovered after the conviction. I have filed a petition for a new trial based on the newly discovered evidence showing fraud committed by the prosecution, NCIS, Petty Officer Paul Skovranko and Mrs. Stacey Skovranko. The Judge Advocate General and the appeals courts have refused to take any action to correct this injustice. By not correcting

this matter the Judge Advocate General has not only violated Pvt Ehlers Constitutional rights but various Department of Defense Directives as well. I am bringing forth this lawsuit on behalf of Pvt Edwin A. Ehlers II, myself and our two minor children under the Tucker Act1 and 28 U.S.C. 1495 damages for unjust conviction2 in the

amount of forty million dollars (40,000,000) for Deprivation of rights 18 USC 2423, violation(s) of Pvt Ehlers right to a Speedy Process Trial under the the Sixth Amendment, violation(s) of Due of

under

Fourteenth

Amendment,

violation(s)

Department of Defense Directives, JAG Instructions, Secretary of the Navy Instructions and Loss of Consortium.

Jurisdiction The United States Court of Federal Claims has the jurisdiction to render judgment upon any claim against the United States founded either upon the constitution, or any act of congress or any regulation of an executive department, or upon and express
1

The Tucker Act (28 U.S.C. 1491) waives sovereign immunity for such claims against the federal government. 28 U.S.C. 1495 damages for unjust conviction and imprisonment; claim against the United States.
2

18 U.S.C. 242 a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States
3

or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort under 28 U.S.C. 1491.

Background On June 2, 2004 HS came forward with allegations that someone had touched her but refused to give a name. According to Randi

Hester, the daughter of Private Ehlers ex-wife, who was the first person to hear the allegations, HS would only say that he touched her.

Later that morning after Stacey Skovranko (mother of the alleged victim) woke up, Randi Hester and HS told her mother, Stacey Skovranko that someone had touched her. According to Randi

Hester, HS repeated the same story she had told her earlier, still not naming the person who allegedly did this to her. When

Stacey Skovranko asked who did this to her, HS refused to say anyones name. Mrs. Stacey Skovranko asked HS if it was Pvt

Ehlers that did this to her and HS agreed with her mothers statement. At that point, Stacey Skovranko realized Randi

Hester was in the room and Randi Hester was then told to leave so Mrs. Stacey Skovranko could question her daughter alone.

In

the

afternoon

of

June

2,

2004,

Petty

Officer

Paul

J.

Skovranko, the father of the alleged victim, was called at work by his wife Stacey. his CO, Chaplain Petty Officer Skovranko said that he told what Stacey had told him, and that

Gibson

Chaplain Gibson said to take HS to the Beaufort Naval Hospital. Petty Officer Skovranko came home from work and proceeded to question HS about her allegations. Petty Officer Skovranko told

his wife Stacey not to come into the room when he questioned HS alone, for the 3rd time that day regarding her allegations.

Approximately 4:45pm, several hours after returning home, Petty Officer Paul Skovranko took HS to the Beaufort Naval Hospital. Petty Officer Skovranko stated he spoke to the officer of the day, security and several emergency room staff members about HS stating she had been sexually assaulted. Petty Officer

Skovranko was told by the staff members that there was nothing the hospital could do because of the time that had passed and refused HS treatment.

Petty

Officer that

Skovranko after the

then

stated

to

NCIS

in

his his

sworn child

statement

Naval

Hospital

refused

treatment, he signed HS into the ER and was escorted to an exam room where her vitals were taken, and they were left alone in the room for several hours without a doctor coming into examine
5

her.

While waiting, Petty Officer Skovranko said that HS told

him that Pvt Ehlers did not do anything to her, and he became frustrated and signed her out of the emergency room and took HS home.

June 3, 2004 petty Officer Skovranko contacted NCIS to report the allegations made against Pvt Ehlers. Petty Officer

Skovranko and his wife Stacey went to the Parris Island NCIS building and each gave a sworn statement to NCIS regarding the allegations that their daughter had told them about the previous day. Both parents stated that HS told them Pvt Ehlers had

touched her, raped her, and spanked her.

June 9, 2004 HS did a forensic interview with NCIS Special Agent Gauthier at the Hope Cottage Rape Crisis Center in Beaufort, SC. During her interview HS told NCIS Agent Gauthier that Gloria Ehlers (former the wife of the sexual accused) and a boy named James Agent

witnessed

alleged

assault.

NCIS

Special

Gauthier asked HS to demonstrate with the anatomical dolls what happened, and when it was apparent that she could not complete this task, there was a knock on the door and the interview was terminated shortly thereafter. At the end of the interview, HS

told NCIS Agent Gauthier that someone told her to tell what happened to her, and when questioned, she could not remember who
6

told her to say what he did.

HS then thanked the NCIS Agent

Gauthier for telling me what he did and the video cut to a blank screen.

June 24, 2004 Randi Hester and her mother, Gloria Ehlers, were interviewed by two NCIS agents at their home. Randi Hester told

the NCIS agents that after she spoke to HS, Stacey asked HS who did this to her, but HS refused to state anyones name. Randi

said that Stacey asked if Pvt Ehlers was the one who did this to her and HS answered yes. Randi Hester made it very clear to

NCIS agents that Stacey is the one who told HS that it was Pvt Ehlers who did this to her.

Gloria Ehlers was interviewed at the same time as Randi Hester. Gloria was asked several things regarding Pvt Ehlers but was never asked if she witnessed the alleged sexual assault. NCIS

agents were aware of the allegations against Gloria Ehlers on June 9, 2004 when they interviewed her on June 24, 2004.

The timeframe between the allegations on June 2, 2004 and Randi Hesters Fallujah, preferred interview Iraq for and with NCIS, in Pvt Ehlers was deployed Charges to were

returned

January

2005.

court-martial in June 2004 and Pvt Ehlers was

allowed

to

leave

the

country

while

there

was

an

open

investigation pending against him.

April 4, 2005 Pvt Ehlers went to the NCIS building aboard Camp Pendleton and was interviewed by Special Agent Art Spafford, the case manager and Special Agent Laura Merz. Private Ehlers

claimed his innocence with regards to the allegations against him and Pvt Ehlers volunteered to take a polygraph examination.

May

25,

2005

Pvt

Ehlers

was

polygraphed

and

interviewed

by

Special Agent Eric Muelenberg.

Special Agent Muelenberg wrote

in his Report of Investigation (ROI) that Pvt Ehlers admitted to touching HS and committing other lewd acts. After the alleged

confession Special Agent Muelenberg did not ask for pretrial confinement nor did he video tape the admission or obtain a signed confession. There is also mention of a polygraph,

although to this day the results are unknown since NCIS has been contacted documents. several times but they are unable to locate any

On August 20, 2007, Gloria Ehlers was asked at trial if she witnessed HS being sexually assaulted by Pvt Ehlers because HS had accused her of being in room where it allegedly took place.

Gloria Ehlers stated no, she did not and if HS said that then she would be lying.

Gloria Ehlers also admitted that these accusations against Pvt Ehlers started when she and Pvt Ehlers were getting divorced and she was mad at him. Her friends, the Skovrankos were aware

of the pending divorce and of Glorias financial problems since Pvt Ehlers decided to divorce her and moved out of the home they shared on base.

Stacey Skovrankos testimony was impeached at trial and she was found to be untruthful by the judge with regards to her

statement that Pvt Ehlers had babysat HS in October 2002.

Petty Officer Paul Skovranko told the court that he took his daughter treatment. to the Beaufort Naval Hospital and was denied

He also admitted to questioning his daughter alone

the day she came forward with the allegations.

Special Agent Muelenberg admitted at court that Pvt Ehlers only made the outline had of the in home all but the that details he of (Special the Agent an

Muelenberg)

filled

home,

admission of tampering with evidence.

Special Agent Muelenberg also admitted that there was a video camera available in the room when he interrogated Pvt Ehlers but did not utilize the camera to solidify the alleged confession; he stated that his word should be good enough.

Pvt Ehlers was convicted on August 21, 2007 by a military judge and was sentenced to 25 yrs in prison.

I.

Pvt Ehlers Sixth Amendment rights were violated

Under the Sixth Amendment, defendants in criminal cases have the right to a speedy trial. Upon appeal, Judge Maksym at the Navy-

Marine Corps Court of Criminal Appeals stated in his dissent: I dissent. As a matter of moral conscience and mindful of my oath as a jurist, I cannot bring myself to join my learned brethren in affirming the sodomy conviction below. Clearly, reasonable minds can differ in determining whether or not the Government has satisfied its burden of proof based upon the facts as they have been placed before us. My marked reservations are, in the main, prompted by the significant delay opaquely portrayed in the record of the nearly three year interregnum between the first statement by the minor alleged victim and a trial on the merits. Record at 319-20. These massive delays shroud the entire proceedings with the specter of reasonable doubt. Any explanation from the United States as to the rationale for these delays would have permitted me to place them in context. No such explanation exists. (Exhibit A)

10

The U.S. Supreme Court laid down a four-part ad hoc balancing test for determining whether the defendant's speedy trial right has been violated in the case of Barker v. Wingo4: 1. Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial", but the Court has never explicitly ruled that any absolute time limit applies. 2. Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations. 3. Time and manner in which the defendant has asserted his right: If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed. 4. Degree of prejudice to the defendant which the delay has caused.

In Strunk v. United States 5, the Supreme Court ruled that if the reviewing court finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court has held that, since the delayed trial itself is the state action which violates the defendant's rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a

Barker v. Wingo, 407 U.S. 514 (1972) Strunk v. United States, 412 U.S. 434 (1973)

11

criminal

case

on

speedy trial grounds means that no further

prosecution for the alleged offense can take place.

II.

The military judge abused his authority by allowing a Civil Right to be ignored

Special during

Agent the

Eric

Muelenberg Pvt

made

tactic invoked

admission his

that to

interrogation,

Ehlers

rights

consult with an attorney.

Special Agent Muelenberg casually

mentioned that he did not terminate the interview at that time of the request but continued to interrogate Pvt Ehlers until the duty driver arrived. Although the actual statement was somehow omitted in the Record of Trial that was presented to Defense Counsel, the military judge, Major Brian E. Kasprzyk made reference to the testimony at the end of the trial. The statement is as follows:

Prior to announcing the findings of this court, I want to make clear that I did not consider the testimony of Special Agent Muelenberg with regard to Sergeant Ehlers electing to terminate the interview and ask for a lawyer during the interrogation on 25 May 2005. Record at 378. (Exhibit B)

By

not

considering

the

statement

made

my

Special

Agent

Muelenberg, the judge has violated Pvt Ehlers Art 31, UCMJ and

12

Miranda rights and abused his authority as the finder of fact under RCM 902(a). the protections of In the military, the accused enjoys not only Article 31, but also the Supreme Courts

mandate from Miranda.6 When enacting Article 31, Congress sought a procedural mechanism to protect a service members constitutional right against selfincrimination when confronted by the subtle pressure inherent in superior-subordinate relationships within the military. It is

believed that subordinates, if questioned by a superior, would feel compelled to respond, even to the point of admitting to a crime they had not committed.7 When the process shifts from

investigatory to the accusatory-when its focus is on the accused and its purpose is to elicit a confession, our adversary system begins to operate, and, under the circumstances here, the

accused must be permitted to consult with a lawyer.

In Miranda

the court continued by stating, if he indicates in any manner and at any stage of the process that he wishes to consult with an attorney
8

before

speaking

there

can

be

no

further

questioning.

United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).

6

United States v. Armstrong, 9 M.J. 374, 378(C.M.A. 1980)

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2nd 2d 694 (1966).
8

13

In the case of United States v. Riley,9 an agent of the Naval Criminal Investigative Service, testifying at Rileys court-

martial, made reference to the accuseds invocation of his right to remain silent during the interview. The Court of Criminal Appeals recognized that when the

prosecution brings such matter to the attention of the factfinders, standard reviewing concluded: Considering all the evidence presented at trial, there is a reasonable possibility the erroneous introduction into evidence of the fact the appellant repeatedly exercised his right to remain silent before trial might have contributed to his conviction. . . . Since it is not clear beyond a reasonable doubt that, absent the error, the members would have found the appellant guilty, the error, if properly preserved, would not have been harmless under the Constitutional standard. Had the error been objected to at trial and the military judge failed to take adequate corrective action, the appellant would be entitled to a new trial. the of the usual test for prejudice a this is the constitutional After below

harmless evidence

beyond under

reasonable standard,

doubt.10 the court

Noting, however, that a constitutional or other right may be forfeited by failure to make timely objection, the court below then analyzed the effect of the error in light of appellants
9

United States v. Riley, 47 M.J. 27 (1997)

United States v. Moore, 1 M.J. 390 (CMA 1976); see also United States v. Ward, 1 MJ 176 (CMA 1975) (adopting test of Chapman v. California, 386 U.S. 18 (1967)).
10

14

failure

to

object. does not

The

court

noted there

that is

the plain

doctrine error. Art

of See

forfeiture Mil.R.Evid.

apply Manual

where for

103(d),

Courts-Martial

and

59(a)

Uniform Code of Military Justice (UCMJ). The court also observed that to demonstrate plain error, an appellant has the burden of showing the appellate court that there was error, that it was obvious, and that "it affects a substantial right of the

accused, i.e., it was prejudicial."11 In United States v. Riley, the court noted: This tainted view is especially important when considered in connection with the nature of the Governments case. As the Court of Criminal Appeals noted, the testimony of the prosecutrix was wavering; there were no other witnesses and "no physical evidence or other direct corroboration at trial that any sexual acts took place." 44 MJ at 674. In opposition to the childs testimony, appellant denied that any sexual activity had occurred and offered evidence of his good military character. With the record in this state, we conclude that the obvious and substantial error in referring to appellants invocation of his right to silence "materially prejudice[d] [his] substantial rights." Art. 59(a). The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed. The findings and sentence are set aside.12

The

failure to

of

Naval with

Criminal the

Investigative of the

Service United

(NCIS) States

Agents

comply

mandates

Constitution, as interpreted by the courts, results not only in 44 MJ at 675 (citing United States v. Prevatte, 40 MJ 396, 397 (CMA 1994)).
11

12

United States v. Riley, 1 MJ at 391 (1997)

15

the dismissal and loss of cases, but also the liability on the part of the officer, as well as the administrator and the

agency.

Failure on the part of the agency to properly train, or

to enact and enforce guidelines that are consistent with the constitutional provisions, often results in civil actions. Civil rights statute that provides civil remedies for official misconduct was enacted by Congress in 1871, and is codified as 42 U.S.C. 198313. The primary concern of the plaintiff is to

show that the officer deprived him or her of a constitutional right under the Constitution or court decision.14 The second

concern of the plaintiff in a civil rights action under 1983 is to show that the officer acted under the color of the law. The liability requirements are succinctly stated in several

recent cases.

In one case, the court held that the initial

inquiry in a 1983 action includes the following: the conduct complained color of a the of was committed by a defendant acting under or of state his law; or and whether this the

federal person

conduct or

deprived

her

rights,

privileges,

immunities secured by the Constitution.15

13
14

42 U.S.C. 1983 Civil action for deprivation of rights Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994)
15

Richmond v. Cagle, 920 F. Supp. 955 (E.D. Wis. 1996)

16

Failure to comply with Constitutional mandates as interpreted by the court will result in a criminal action. Federal law defines

the criminal violation and is codified as 18 U.S.C. 24216. This mandate requires that the prosecution to introduce evidence to show that the person charged was acting under the color of the law, that there was a deprivation of rights protected by the Constitution to laws of the United States, and that the

defendant acted willfully or intentionally to deprive a person of their rights. Additionally, once a due process right has

been defined and made specific by a court decision, a violation of that right in encompassed by 242 of the Civil Rights Act.17

III. At

Special Agent Muelenberg admitted to tampering with evidence trial, Special Agent Muelenberg admitted that he put the

marks on the drawing that was submitted into evidence at the Article 32 hearing, thereby admitting to tampering (Exhibit C) with the

evidence used against Pvt Ehlers at trial.

Special Agent Muelenberg also stated that he did not look at any other suspects even though Gloria Ehlers brother James lived at
16
17

18 U.S.C. 242 Deprivation of Rights Under Color of Law

United States v. Stokes, 506 F.2d 771 (5th Cir. 1975)

17

the home during this timeframe, Donna Kerr was said to have been home. babysat Gloria from Ehlers to and time James were Engle, said to a child whom Gloria this

time

have

witnessed

alleged sexual assault.

(Exhibit D)

IV.

NCIS Agent Muelenberg lied about getting a confession from Pvt Ehlers

Special Agent Muelenberg, NCIS Camp Pendleton, submitted several documents dated May 25, 2005 stating that Pvt Ehlers gave him a confession and admitted guilt to the accusations against Pvt Ehlers. I have recovered a report of investigation from NCIS dated

August 1, 2006, written 15 months after the alleged confession. The document states the Pvt Ehlers The maintained first Special his innocence in

throughout April and

both the

interrogations. second in May

interrogation Agent

where

Muelenberg

administered the polygraph. confession.

The document stated there was no

This document shows that Special Agent Muelenberg

was being untruthful at court and during the investigation when he stated that he received a confession from Pvt Ehlers.

(Exhibit E)

18

Special Agent Muelenberg also stated that he never received a written statement and also did not use a camera that was

available in the room, while conducting the interrogation of Pvt Ehlers in May 2005. When asked if he thought it would be a more

credible piece of evidence, he stated he did not believe that to be more credible. (Exhibit D Pg 293)

At the Article 32 hearing in February 2007, Pvt Ehlers stated he was told by his first sergeant that NCIS was his place of duty on 25 May 05 for the interrogation. Although he did not fear

repercussions from his First Sergeant, Pvt Ehlers still felt required to be at the NCIS office that day. Pvt Ehlers was asked to write a statement by NCIS. Pvt Ehlers

refused to write the statement because Special Agent Muelenberg wanted to dictate what was to be written. At this point in the

interrogation, Pvt Ehlers requested to speak to an attorney. (Exhibit F). As one military court explained: Because of the effect of superior rank or official position upon one subject to the military law, the mere asking of a question under certain circumstances is the equivalent of a command. A person subjected to these pressures may rightly be regarded as deprived of his freedom to answer or to remain silent.18

18

United States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981)

19

During Pvt Ehlers trial, NCIS Special Agent Eric Muelenberg testified as to what was told to him by Pvt Ehlers without supplying any other proofs of such statements (i.e. written and or videotaped confession). Special Agent Eric Muelenberg

stated, when asked why he did not provide the above mentionedthough a video camera was available in the room at the time; he clearly stated that his word should be good enough. This alleged confession from Pvt Ehlers that Special Agent

Muelenberg claims to have been given, does not exist.

This was

alleged confession was the whole basis for the Governments case. Pvt Ehlers requested to speak to an attorney, Special Agent

Muelenberg admitted that he continued to question Pvt Ehlers until the duty driver arrived and the military judge refused to acknowledge that Pvt Ehlers was improperly questioned by Special Agent Muelenberg. (Exhibit B)

What the court has condemned and continues to condemn is the improper use of questioning, or using questioning as a

substitute for a thorough investigation.

Before a confession

may be admissible as evidence for most purposes, it must pass at least five tests. voluntary. First, a confession must be given freely and a confession must meet the requirements

Second,

established by the U. S. Supreme Court in the McNabb and Mallory cases. Third, with some exceptions, a confession will not be
20

admitted

if

the

Miranda

warnings

are

not

given.

Fourth,

confession is not admissible if it is tainted by an illegal arrest or search. there is request. a Fifth, a confession may be inadmissible if provide the suspect with counsel upon

failure to

Additionally, independent corroborative evidence must be

introduced. According to the federal court of Illinois, the proper inquiry for determining whether a confession was improperly coerced

looks to the totality of circumstances, rather than the single factor of deceitful tactics used by interrogators.19 will be not support An a to

extrajudicial conviction.

confession, Independent

standing

alone, must

evidence

introduced

corroborate the statements made in the confession.

There is no

independent evidence that Pvt Ehlers committed the crime he was convicted of, and to this day NCIS Headquarters is unable to locate the alleged failed polygraph and any other refrence to the confession. (Exhibit G) What

There is no such corroborative evidence in this case.

Special Agent Muelenberg stated that Pvt Ehlers admitted to does not match what the victim, HS alleges.

V.
19

NCIS FAILED TO PROPERLY INVESTIGATE CLAIMS

Williams v. Peters, 843 F. Supp. 427 (N.D Ill. 1994)

21

In December 2008, I Contacted NCIS Parris Island and spoke with Special Agent J. R. Crandall, who stated he was a supervisor within NCIS. I told Special Agent Crandall that I had a few

questions to ask regarding the Family Advocacy Program (FAP) under DoD Directive 6400.1. Special Agent Crandall stated that I advised him that yes

the FAP was not available in June 2004. it was, but it was not utilized.

Special Agent Crandall then When I told him that

stated that his people did contact them.

no, they did not and I had a document stating the FAP still as of January 2008 had not been contacted (Exhibit H), he terminated the call. By not notifying the Family Advocacy Program (FAP) and local civilian authorities, NCIS violated DOD Directive 6400.1 which is a mandatory report to make once they received information regarding the alleged sexual assault. This report to the FAP

also notifies the local child protective agency and local law enforcement. (Exhibit I)

I wrote two letters to Special Agent Crandall, showing him the documentation and when I did not receive a response, I contacted the NCIS IG Robert D. Mulligan in April 2009. I let NCIS IG

Robert Mulligan know that I had proofs of agent misconduct and that NCIS failed to make the mandatory report to the FAP per DOD 6400.1. NCIS IG Robert Mulligan
22

responded

that

he

would

investigate the allegations with the documentation I submitted and take the action he deemed appropriate. (Exhibit J) NCIS IG

Robert Mulligan has yet to conduct the investigation. On January 22, 2010 I found Petty Officer Paul Skovranko in his current command and made a report of a false official statement to the court, NCIS and fraud to his Commander Kathleen Kerrigan. Commander Kerrigan turned the information I provided over to NCIS and I received a direct response from Commander Kerrigan stating that Special Agent Sam Slyen, NCIS San Diego, declined to conduct an investigation. (Exhibit K)

Upon receiving the denial, I contacted the DOD Hotline under the Department of Defense Inspector General. Mr. Leonard Trahan

stated that they do not handle claims of fraud and that the allegations do not warrant an investigation. (Exhibit L) By

ignoring their duties, the Department of the Navy, NCIS, and the DoD Hotline program under the DOD IG are in violation of DoDD 5500.07, DoDI 3210.7, DoDI 5505.3, DoDI 5505.2 and SECNAVINST 5430.27C. In Accardi v. Shaughnessy, the court ruled: the most reasonable remedy and the one followed by the courts whenever appropriate is to set aside the action that has taken contrary to the regulation

23

and require further proceeding in compliance with the regulation.20 The basic case in field; and by the Court of Military Appeals in United States v. Dunks, supra (FN6), a recent military case Such remedy is inappropriate, however, in the

based on Accardi.

situations where once the action in noncompliance, there is no effective way the procedures can be rolled back and compliance required. The question then becomes one of prejudice to the We must look at what

accused as a result of the noncompliance.21

has been infringed and what has occurred because of the failure to follow the regulation.22 Criminal justice personnel are

required to enforce state, federal, and local laws.

They are

bound by oath to affirmation to support the Constitution of the United States. Although the Supreme Court has attempted to

balance the power of the government and individual rights, if there is a conflict, the Constitutional Rights as interpreted by the United States Supreme Court takes precedence.

VI.

The

prosecution

withheld

evidence

that

proves

reasonable

doubt

20

US ex. Rel. Accardi v. Shaunghnessy, 347 U.S. 260, 74 S. CT. 499, 98 L. Ed. 68 (1954)
21

Peavy v. Warner, 493 F. 2nd 748 (5th Cir. 1974). Id. At

United States v. Torres, 3 M.J. 659, 662 (ACMR 1977). 662.

22

24

The Prosecution wanted to talk to Randi Hester again, face to face, and see if she (Randi) would change her story to match what HS and her family told NCIS. story about HSs accusations-or When Randi didnt change her lack thereof-the prosecution

would not let Randi Hester, a witness to the allegations made by HS and a witness to Stacey Skovranko coaching HS into stating it was Pvt Ehlers that did this to her, take the stand. Randi

Hester would have told the truth as to what really happened, with regards to HSs allegations. Randi Hester was available at the trial, flown out there by the Government at their expense specifically to testify. Randi

Hesters statement to NCIS, statements made to Petty Officer Skovranko and his wife Stacey were used against Pvt Ehlers at trial and included in the Record of Trial but he was never allowed to confront her at trial. This is a violation on Pvt

Ehlers Sixth Amendment Rights under the Confrontation Clause. The defense must have an opportunity to "confront" and crossexamine witnesses. The Confrontation Clause relates to the

common law rule preventing the admission of hearsay, that is to say, testimony of by a one witness to as to the the statements statement and or

observations

person

prove

that

observation was accurate.

25

The

rationale

was

that

the

defendant

had

no

opportunity

to

challenge the credibility of and cross-examine the person making the statements.23 Yet in Crawford, the Supreme Court increased the scope of the confrontation clause in trials. The Court ruled that "testimonial" out-of-court statements are inadmissible if the accused did not have the opportunity to cross-examine that accuser and that accuser is unavailable at trial. "Testimonial" becomes a term of art here, meaning any statements that an objectively would have reasonable deemed person to be in the in declarant's court. In

situation

likely

used

Melendez-Diaz,24 the Court ruled that admitting a lab chemist's analysis in to evidence, without having him testify, violated the Confrontation Clause. Pvt Ehlers was further denied his rights when he was also not allowed to call Randi Hester as a witness for the defense

because the defense was not aware that she was going to testify as to the truth of the allegations. Randi Hesters statement to

NCIS in June 2004 states that she witnessed HS never providing the name of anyone until her mother told her it was Pvt Ehlers. (Exhibit M)

23

Crawford v. Washington, 541 U.S. 36 (2004) Melendez-Diaz v. Massachusetts, 557 U.S. (2009)
26

24

VII.

The alleged victims father, Petty Officer Paul Skovranko, lied to NCIS and the Courts.

Petty Officer Skovranko told NCIS on June 3, 2004 that he took his daughter to Beaufort Naval Hospital on June 2, 2004 for treatment after she came forward with the allegations of sexual assault made against Pvt Ehlers. Petty Officer Skovranko said

that the hospital took his daughters vitals, gave her stickers and after waiting for several hours and HS telling him that Pvt Ehlers did not do anything to her, he became frustrated and signed his daughter out of the hospital and took her home.

This of course, was after her told NCIS in his sworn statement that he was initially denied treatment for HS. (Exhibit N)

Attorney Michael Eisenberg contacted LT Adam Burch who worked in the administration department of the Beaufort Naval Hospital and completed the FOIA request in February 2008 asking for the sign in/sign out for HS. LT Burch sent an e-mail to Michael

Eisenberg dated February 20, 2008 that reflects Petty Officer Skovranko and HS were never at the hospital on June 2, 2004 or even in the month of June 2004 as stated. (Exhibit O)

This would mean that Petty Officer Skovranko LIED to NCIS and to the court with regards to taking his daughter, HS to the

Beaufort Naval Hospital the night of June 2, 2004.

If Petty

Officer Skovranko had taken HS to the Beaufort Naval Hospital,

27

the

Family

Advocacy

Program

under

DoD

Directive

6400.1

and

NAVMEDCOMINST 6310.3 would have been implemented immediately.

VIII.

The alleged victims mother, Stacy Skovranko, lied to NCIS and the Courts

Mrs. Stacey Skovranko gave a sworn statement to NCIS on June 3, 2004, the day after her daughter came forward with the

allegations against Pvt Ehlers.

Stacey talked in detail to NCIS

about how she left HS to be babysat by Pvt Ehlers around October 2002. Stacey stated that Edwin told her Glorias mother; Donna was also at home when she left HS alone with Edwin. Gloria testified that Edwin did not live in the home from August 2002; until he moved back into the home in November 2002

confirming that there was no possible way Pvt Ehlers could have babysat the alleged victim HS at his home in October 2002 as stated by Stacey Skovranko. Staceys statements were impeached at trial regarding her testimony about Pvt Ehlers babysitting her daughter. (Exhibit P)

Stacey advised the NCIS Agent that when they were living on Alderwood Rd (which was when they met the Ehlers in June 2002) HS was sick times and lethargic. day. They Stacey
28

took said

her that

to

the

hospital nurses

several

that

when

the

attempted to put in a cathedar, H.S. was screaming at the nurses not to touch her privates. Stacey believed that this was (Exhibit Q) solidify the

after Pvt Ehlers had allegedly babysat for HS. This statement was also supposed to

help

allegations against Pvt Ehlers, yet HSs medical records reflect that this incident at the Camp Pendleton Naval Hospital happened December 2001, several months prior to meeting the Ehlers.

(Exhibit R) The hospital also did not suspect that anything was wrong with HS (i.e. sexual assault, abuse, etc) at the time of this discovery made by Mrs. Stacey Skovranko.

IX.

The alleged victim, HS, lied to NCIS and the court

HS told NCIS on June 9, 2004 that Gloria Ehlers and James Engle (a child who put his hands down her pants), were a witness to her alleged sexual assault by Pvt Ehlers. HS stated to NCIS that someone told her to say what he did to her, but she could not remember who it was. (Exhibit S) HS did not want to state who

told her to say it was Pvt Ehlers because it was in fact her mother, Stacey Skovranko, who gave the child the name of Pvt Ehlers and Randi Hester witnessed this before being told to

leave the room.

(Exhibit M)

29

During her forensic interview, HS was asked by the NCIS agent to show him what Mr. Eddie did to her by using the anatomical dolls provided. HS was unable to complete this task to

demonstrate what she alleges occurred.

At this point in the

video, there was a knock at the door telling the NCIS agent to stop all questioning when it was apparent that the child could not physically demonstrate the acts of sexual abuse that she had stated moments before. HS then thanked the NCIS agent for

telling me what he did and the video ended abruptly. James Engle and Gloria having Ehlers were never questioned by NCIS witnessed the and alleged Special sexual Agent assault. Gauthier

regarding NCIS

their

Special

Agent

Muelenberg

admitted under oath that both James and Gloria should have been questioned in conjunction with this case since HS accused them of witnessing the alleged acts. (Exhibit D)(Exhibit T) Special

Agent Gauthier even admitted that the childs statement during her forensic interview regarding Mr. Eddie being sick could have been planted in her head. Gloria told the court on August 20, 2007 that she had just been told that HS had accused her of witnessing this alleged event shortly before the trial, not several years before when she was actually accused. The defense specifically asked Gloria if she did witness anything. Gloria said no, so they proceeded to ask
30

her

if

HS

had

said

that

Gloria

was

there,

HS

was

being

untruthful and Gloria answered yes.

(Exhibit U)

HS stated that it happened in an upstairs bedroom and bathroom while her family lived next door to the Ehlers on Alderwood Rd aboard Camp Pendleton but the home was only a 1 story home. (Exhibit V) All adults at the trial confirmed that the Alderwood

Rd home was a 1 story home. HSs mother, Stacey also told the court that she never left HS alone with anyone in a 2 story home. (Exhibit W)

HS stated numerous times to the military judge that she did not remember what happened or any events that led to her admissions. (Exhibit X) X. The Prosecutors in Appellants case did not fulfill their ethical and legal duties. On April 24, 2008 I contacted Major Clay A. Plummer by phone and had a conversation with him that lasted approximately 45 minutes. I contacted him regarding a complaint I was

filing with licensing state for Captain John E. Y. Ellis bar. was, At the time, I did not realize who Major Plummer and proceeded to ask him for Captain Ellis bar

information so a formal complaint could be sent.

31

Major Plummer questioned me as to why I needed the information and I told him at that to Pvt that point that and Captain well Ellis as had

misrepresented defense Plummer Ehlers witness was

himself before

myself

another Major Pvt his

Ehlers LT did

conviction.

surprised

Michael not

Melocowsky, this to

defense

attorney,

bring

attention before the closing of the trial.

Major Plummer

and I talked in detail about Pvt Ehlers convictions and also the evidence (or lack thereof) that was presented at trial. I asked Major Plummer if, even after the trial, he was notified that some of the evidence was false would he be required to report it and notify the court. He told me yes, it

would be his legal obligation to pursue all evidence that pertains to someones innocence and report the

misrepresentation to the courts. fulfilled those obligations.

As of today, he has not

On April 25, 2008 I sent a certified letter to Major Plummer cataloguing our conversation from the previous evening. It was received and signed for by Edward Lopez on May 1, 2008. (Exhibit Y) Michael Shortly thereafter Pvt Ehlers Eisenberg, contacted to me Major until Plummer. Michael

attorney, Major

Plummer

denied

speaking
32

Eisenberg reiterated some of the conversation from a few days prior and gave specific he details disclosed regarding during Major that

Plummers

family

that

conversation.

Major Plummer advised Michael Eisenberg he

was not going to report the fraud on the court committed by Petty Officer Skovranko, his wife Stacey or Special Agent Muelenberg because the case was past the convening authority and on its way to the appeals court. By not making this mandatory report of fraud, Major Plummer is in violation of JAGINST 5803.1C, the Ethical Standards for

Attorneys Practicing under the Cognizance of the Judge Advocate General. I then contacted the Judge Advocate General and the The Judge Advocate General,

Secretary of the Navy, Ray Maybus.

Vice Admiral Houck responded and also declined to investigate the claims even when presented with the documentation showing the fraudulent claims made by Petty Officer Skovranko, Mrs.

Stacey Skovranko and their daughter HS. investigating the violations presented,

(Exhibit Z) the Judge

By not Advocate

General has violated R.C.M. 109(a) and JAGINST 5803.1C. I have also, since my conversation with Major Plummer in April 2008, contacted Major General Richard P. Mills and Lieutenant General Thomas D. Waldhauser regarding this injustice. AA) (Exhibit

Both are former Commanding Generals of 1st Marine Division,

33

the

same

division happened.

Pvt

Ehlers

was

attached

to

when

this the

conviction

Lt. Gen. Thomas D. Waldhauser was

acting convening authority in Pvt. Ehlers appeal.

I personally

gave Lt. Gen. Waldhauser a copy of the Article 73 petition for a new trial in April 2009. Included was all the documentation I Lt.

have supplied to the others showing my husbands innocence.

Gen. Waldhauser, at the time, was able to remand the case back and make changes to the findings based on the facts submitted to him because the Navy-Marine Corps Court of Criminal Appeals had not yet acted on the case. He refused, and therefore violated

the policies that he himself, oversaw as the Deputy Commandant for Plans, Policies and Operations under the Commandant of the Marine Corps. Both Major General Mills and Lieutenant General Waldhauser are obligated under the Uniform Code of Military Justice to report the frauds presented to them and both have failed to do so.

XI.

Trial

defense

counsel

failed

to

properly

reasonably

investigate Appellants case. Pvt Ehlers was denied his sixth amendment right to effective assistance of counsel when his initial defense counsel failed to properly investigate his case.

34

Lieutenant file for

Michael several

Melocowsky, months and

defense would

counsel, have

had

the the

case above Most

found

information had he done his job to investigate this case. of the information

enclosed was available in the case file, Detailed defense

which I obtained after Pvt Ehlers conviction.

Counsel failed to properly investigate and diligently challenge statements made by HS, Petty Officer Skovranko, Stacey Skovranko and Special Agent Muelenberg at trial. counsel, Lieutenant Michael Melocowsky After I obtained new refused to answer any

questions regarding his demeanor at the trial and his failure to challenge any statements made by prosecution witnesses.

CONCLUSION It is plainly obvious that Pvt Ehlers was denied a fair trial because of the above mentioned facts. The government is

required to follow their own policies and regulations yet they continually fail to do so. The conduct of the NCIS agents who Once

conducted the investigation and interrogation is shocking.

a person subject to an interrogation raises his desire to speak with an attorney, the all questioning to must stop and he must such be a

provided

opportunity

obtain

one.

Following

statement the interrogators must not make any statement other

35

than yes and provide the suspect the opportunity to speak to counsel. Special Agent Eric Muelenberg refused to comply with this

request made by Pvt Ehlers on May 25, 2005 and the military judge acknowledged the statement at the end of trial. An

explanation of Pvt Ehlers rights is of no value if the agent then fails to honor those rights. The practice of ignoring

policies and procedures continued throughout the rest of the investigation, trial and beyond. with tremendous vigor in the NCIS pursued these charges of finally getting some

hopes

evidence of wrongdoing by Pvt Ehlers. Despite the existence of exculpatory evidence, the government pursued its case in the apparent hope that the defense would not find it after the trial on merits. The prosecution in this case repeatedly failed its affirmative duty to provide the defense with the exculpatory evidence in its possession. The Supreme Court imposes the duty on all

prosecutors to immediately turn over all evidence that tends to negate the guilt of the accused as soon as that evidence comes into their possession. required by the defense. No request or demand for production is

36

Many

of

the

actions

discussed

above

had

the

consequence

of

delaying the case to the point where prosecution became a legal impossibility under the Speedy Trial protections of the Uniform Code of Military Justice, the Constitution and the Rules for Court-Martial, yet the trial was still held on August 21, 2007three years after the first report to NCIS in June 2004, and Pvt Ehlers was still convicted. Since these issues have been bought to the attention of NCIS, Department of Defense, the Department of the Navy, the

Commandant of the Marine Corps and the Judge Advocate General numerous times, all have turned both a blind eye and deaf ear to the wrongs they have committed by refusing to acknowledge the wrongdoing with the documentation submitted. The pleading of ignorance to the law is not a defense to

disregard the law and no one yet has been held accountable.

__________________________________ Dated______________ Angela Ehlers Power of Attorney for Pvt Edwin A. Ehlers II
37

38