Petition for Writ of Certiorari — Lilly v. United States
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Court, U.S.
) FILED s
011404 mar 202002
No.
UFFICE OF tric CLERK
Gn dyhe
Supreme Court of the Cited States
SARA ELIZABETH LILLY,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
*
Petition for Writ of Certiorari
«
Robert A. Taylor
Counsel of Record
MASTERS & TAYLOR, L.C.
181 Summers Street
Charleston, West Virginia 25301
(304) 342-3106
Counsel for Petitioner
THE LEX GROUP ¢ 1108 East Main Street ¢ Suite 1400 ¢ Richmond, Virginia 23219
(804) 644-4419 @ (800) 856-4419 ¢ Fax: (804) 644-3660 ¢www.thelexgroup.com
\"1e 8
I]
QUESTIONS PRESENTED FOR REVEIW
DID RESPONDENT OWE PETITIONER, A 17
YEAR OLD FEMALE UNDERAGE POTENTIAL
ARMY RECRUIT, AN AFFIRMATIVE DUTY TO
PROTECT HER FROM HARM WHILE SHE
WAS IN RESPONDENT'S CARE, AND DID
RESPONDENT OTHERWISE “TAKE CHARGE”
OF PLAINTIFF, BECAUSE SHE WAS A MINOR,
SUCH AS TO CREATE A _ SPECIAL
RELATIONSHIP WHICH ALSO PLACED A
DUTY UPON RESPONDENT TO PROTECT
PETITIONER FROM HARM WHILE SHE WAS
IN RESPONDENTS CARE AND CUSTODY?
UNDER SHERIDAN V UNITED STATES, 487
U.S. 392 (1988), WERE RESPONDENT'S
EMPLOYEES NEGLIGENT IN ALLOWING
ANOTHER GOVERNMENT EMPLOYEE TO
COMMIT A FORESEEABLE ASSAULT AND
BATTERY AGAINST PETITIONER, AND WAS
THIS ENTIRELY INDEPENDENT OF THE
ASSAILANT’S EMPLOYMENT STATUS WITH
RESPONDENT, OR ARE THE CLAIMS OF
PETITIONER, BARRED BY 28 U.S.C. § 2680(H)?
LIST OF ALL PARTIES TO THE PROCEEDING
1 Sara Elizabeth Lilly, Petitioner.
2
3 The United States of America, Respondent.
CORPORATE DISCLOSURE STATEMENT
Neither Petitioner or Respondent are Incorporated
entities.
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TABLE OF CONTENTS
Page
CFE LID FPR Biss ncnensscnainininssiniinnonsrinitnnisshisiai i
PARTIES TO TREE PROC IIIINGG vessessnsnisnssnisncnasadsnnssinnss li
CORPORATE DISCLOSURE STATEMENT ...........000... li
TABLE CR CORNER i iccssinnanteiissrssctsnnnssccisniislaasnennnnaianss iii
TABLE OF AUTHORITIES seeeeeeeeeeeneeenssnsnnanannnnsssssssssscscee Vv
OPTI IY secnnensiessasssetpatenssiisnisdnnssinmibiiaeiannmamied 1
FURR IG essen aneiasssrninssencenonnasniannssaandtensiiataaneed 1
STATUTES TVG ER? enrnsstntiessceseisnstisssaictiamsseasmnensenaie 1
STATEMENT OF THE CA csscnscsiesiccctsisesinsnsansansnncsnsnaens 2
PRAT SG, cisscssansccniininnnsincsshsantasteiansinimadaaamiin tna 7
I. DID RESPONDENT OWE PETITIONER,
A 17 YEAR OLD FEMALE UNDERAGE
POTENTIAL ARMY RECRUIT, AN
AFFIRMATIVE DUTY TO PROTECT HER
FROM HARM WHILE SHE WAS IN
RESPONDENT'S CARE, AND _ DID
RESPONDENT OTHERWISE “TAKE
CHARGE” OF PLAINTIFF, BECAUSE
SHE WAS A MINOR, SUCH AS TO
CREATE A SPECIAL RELATIONSHIP
WHICH ALSO PLACED A _ DUTY
UPON RESPONDENT TO PROTECT
PETITIONER FROM HARM WHILE SHE
WAS IN RESPONDENT'S CARE AND
CFE CIRI NS sccncesusescsssnenannemnennesasiunttisnianelimaesiniimetaamies 7
:
|
|
:
:
Il. UNDER SHERIDAN V UNITED STATES,
487 US. 392 (1988), | WERE
RESPONDENT'S EMPLOYEES
NEGLIGENT IN ALLOWING ANOTHER
GOVERNMENT EMPLOYEE TO
COMMIT A FORESEEABLE ASSAULT
AND BATTERY AGAINST PETITIONER,
AND WAS~ THIS _ ENTIRELY
INDEPENDENT OF THE ASSAILANT’S
EMPLOYMENT STATUS WITH
RESPONDENT, OR ARE THE CLAIMS
OF PETITIONER, BARRED BY 28 US.C.
FE TRESS EIT 12
CORSET AIOE sasincsiscosicsssreeenecnsae 19
PEIN E ee nceessenesenunerientasaniinnemninastastamnandalanaineniena App. i
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. United States,
988 F. Supp. 247 (D.Utah 1984),
Rev'd on other grounds,
816 F.2d 1417 (10% Cir. 1987), cert. denied.
484 U.S. 1004 (1988) ooo ccccccccccecesececececece. 10
Bennett v. United States,
803 F.2d 1502 (9% Cir. _. EC ea 13
Dailey v. Los Angeles Unified School Dist.,
2 Cal.3d 741, 470 P.2d 360 (1970) ooo. ecocccccccccceseeses 9
Doe v. United States,
838 F.2d 220 (7% Cir. ee iiiienciciites 10, 14, 15, 16
Fisk v. Lemons,
201 W.Va. 362, 497 S.E.2d 339 y Ronee 11
Garcia v. United States,
776 F.2d 116 (5 Cir. 1985) ooo cccccccccceseeeee. 15, 16
Hoot v. United States,
790 F.2d 836 (10 Cir. NOE 15
Johnson v. United States,
788 F.2d 845 (2d Cir.), cert. denied,
cg | Ry Eee 15
Kearney v. United States,
815 F.2d 535 (9% Cir. MRR Ree Ee 13, 14
Lonitts v. United States,
489 F. Supp. 1030 (D.Mass. 1980)...
Miele v. United States,
800 F.2d 50 (2d Cir. 1986)................
Mulloy v. United States,
884 F. Supp. 622 (D.Mass. 1995).....
Panella v. United States,
216 F.2d 622 (2d Cir. 1954)...
Perkins v. United States,
55 F. 3d 910 (4 Cir. 1995) oo...
Reid v. Young Men’s Christian Association,
107 Ill. App. 2d 170,
246 N.E.2d 20 (1969) cscccscssccseseenee
Satterfield v. United States,
788 F.2d 395 (6 Cir. 1986)..............
Sheridan v. United States,
487 U.S. 391, 108 S.Ct. 2449 (1988)
Sheridan v. United States,
969 F.2d 72 (4 Cir. 1995) ecceeccssseee
Sheridan v. United States,
823 F.2d 820 (4th Cir. 1987)...
Thigpen v. United States,
800 F.2d 393 (4 Cir. 1986)..............
Underwood v. United States,
356 F.2d 92 (5t Cir. 1966) ....cccceseseen
vi
United States v. Shearer,
I a, Se IEE eeisiisiaanandinnabeekdaseilneiatbasiidaianin 15
Voelker v. Frederick Business Properties Co.,
195 W.Va. 246, 465 S.E.2d 246, 256 (1995)............ 9
Walker v. Meadow,
206 W.Va. 78, 521 S.E.2d 801 (1999)... 11
Waugh v. Duke Corp.,
248 F. Supp. 626 (M.D.N.C. 1966)... ee 10
Wolfe v. City of Wheeling,
182 W.Va. 253, 387 S.E.2d 307 (1989)... 11
Statutes
Br ee Oe et Gaceiosdstiansasssissehisnestsansnceuntirnsnaadiansions I, 84
ee ED iseirniiralancaidecatadiuianssiasaniadscuastininosdnsansiaones 1
en Be aie isastidasseiniatitebinidchsaninaapiaiiasiiinas 1
Fe Rick ae IE sas teseisciasaeidinsatnldies lackinsididinsivanioie passim
Other Authorities
Federal Torts Claim Act...................ssssccsccceeeees 1, 12, 13, 14
Restatement (Second) of Torts (1965)
Sa CO a eieniiectaanieoaniaie 7
ee 8,9
ESR ene a aN em I eae et a Re 19
Vii Z
OPINIONS BELOW
The orders at issue in this appeal are as follow:
(1) The “OPINION AND ORDER” and “JUDGMENT
ORDER” of the United States District Court for the
Southern District of West Virginia dated May 11, 2001,
which granted the United States Motion to Dismiss
[Appendix 3-12]; and (2) The Order of the 4" Circuit
Court of Appeals dated December 20, 2001, which
affirmed the ruling of the United States District Court -
[Appendix 1 and 2].
- JURISDICTION
1. Jurisdiction is asserted against the United
States of America (USA) pursuant to 28 U.S.C. § 1346,
more commonly known as the Federal Tort Claim
Act. In addition, 28 U.S.C. § 2671-2680 confers subject
matter jurisdiction “of civil actions of claims against the
US.A. ... for money damages .. . or personal injury
counsel by the negligent or wrongful act or omission of
any employment of the Government while acting
within the scope of his office or employment. .. .”
2. This Court has jurisdiction of this matter
pursuant to 28 U.S.C. § 1254(1).
STATUTES INVOLVED
As stated above, 28 U.S.C. § 2671-2680 confers
subject matter jurisdiction “of civil actions of claims
against the U.S.A... . for money damages . . . or
personal injury counsel by the negligent or wrongful
act or omission of any employment of the Government
while acting within the scope of his office or
employment... .”
STATEMENT OF THE CASE
The United States District Court entered an
order which stayed any discovery from taking place in
this case when the Respondent filed its motion to
dismiss [App. 15 and 16]. Therefore, all factual
evidence which was submitted to the District Court to
decide this case was submitted via the affidavits of the
Petitioner [App. 27-30]; her mother, Pamela Lilly [App.
31-21] and Randy West, the Kanawha County Deputy
Sheriff who investigated Petitioner’s sexual assault
[App. 34-94].
For years, Respondent, The United States Army,
has encouraged its youth to join the United States
Army so that they can “be all that you can be” and
receive money for a college education. This
encouragement comes to our youth in the formof TV,
radio and magazines ads, and through Army
Recruiters stationed throughout the United States. The
recruiting efforts appeal to high school drop outs and
high school graduates who otherwise could not
afford to continue their education, and who may or
may not have reached the age of majority. Such was
the case for Petitioner, Sara Elizabeth Lilly, who a
potential Army Recruit, and was a 17 year old high
school dropout, when an Army Recruiter, Sergeant
Mark A. Clifford [hereafter Clifford], tried to recruit
her and took her to a bar, and in the presence of fellow
Army recruiters: 1) bought alcoholic beverages for
Petitioner; 2) allowed Petitioner to drink to the point of
unconsciousness; and 3) then put her in a government
vehicle and left the bar when he himself had been
drinking alcoholic beverages, and took her to a motel,
where, while Petitioner was unconscious and helpless,
he raped her.
Petitioner, turned to Respondent to put her on
the right track for the future. In early 1997, Petitioner
dropped out of high school and soon realized the error
of what she had done and contacted the Army
Recruiting Office in South Charleston, West Virginia,
since she believed the best way for her to obtain her
education was to join the Army. The Army recruiter
whom Petitioner spoke with was Clifford and she told
him that she was seventeen (17), a high school drop out
and she wanted to join the Army [See App. 27-30 and
31-33].
Throughout the entire time of events set forth
herein, Clifford was a married man [App. 42, 50 and
117].
In Clifford’s efforts to recruit Petitioner he called
her at home, and came to Petitioner’s mother’s home on
at least one occasion. Sergeant Clifford also made
arrangements for Petitioner to take her GED, since this
was a requirement for entering the Army, and he even
offered to take her to the GED test he said was
scheduled for December 30, 1997 [App. 27-30 and 31-33].
During the early afternoon hours of December
30, 1997, Petitioner’s mother dropped her daughter off
at a local Public Library at 1:00 p.m., where Clifford
met them, ostensibly to take her to her GED test [App.
43 and 89]. Clifford used a Government vehicle to pick
Petitioner up and was wearing clothing that had
“ARMY” written on it [App. 27-30]. Upon arriving at
the GED testing center, Petitioner discovered it was
closed [App. 43 and 89], and it was then Clifford took
Petitioner to lunch and to a movie [App. 89-90].
After the movie, Clifford suggested he take
Petitioner for a drink [App. 92], and he drove her in the
same government vehicle in Army attire to Griff’s, a
restaurant/bar located in South Charleston, West
3
Virginia. Upon arriving at the restaurant/bar, Clifford
saw several fellow Army recruiters, some of whom
were in uniform [App. 28]. Even Clifford’s boss,
Sergeant First Class Raymond D. Adkins, admits to
seeing Petitioner with Clifford that night [App. 136].
While at Griff’s, Clifford purchased numerous
alcoholic drinks for Petitioner, which she drank and
caused her to get so drunk that she laid her head on the
bar, vomited on herself, and passed out [App. 29 and
96]. Clifford also drank numerous alcoholic drinks that
night [App. 94].
Sergeant First Class Charles L. Blevins, who
worked with Clifford, was also at Griff’s that night and
observed Clifford with Petitioner and observed the state
of intoxication Petitioner was in [App. 63-64]. Sergeant
Blevins witnessed Clifford and a waitress carrying
Petitioner out of the bar. Once outside, Blevins saw
Petitioner be put in a white government jeep with
Clifford and he actually chased Clifford down to inquire
about whether Petitioner was okay [App. 51 and 65].
Thereafter, Sergeant Blevins thought the incident
warranted being reported to Sergeant Adkins, and he
did so when he arrived home [App. 65]. Blevins took no
action to prevent Clifford from leaving the bar with an
obviously much younger, intoxicated, unconscious
female in a government vehicle at 10:00 p.m. at night
when Sergeant Clifford had also been drinking.
Upon leaving Griff’s, Clifford took Petitioner to
a motel room, showered her off, and raped her [App.
41, 97-99 and 145]. The next morning, Clifford took
Petitioner to the home of a friend and left her there at
approximately 9:00 a.m. [App. 109]. That same day,
Petitioner went to the hospital, where low levels of
spermatozoa where found on the sweat pants she had
on [App. 146].
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Records indicate Clifford had attempted in
October of 1997, just two months before Petitioner was
sexual assaulted, to get another potential female Army
recruit, 18 year old, Kim Cooper, to have drinks with
him and then he made sexual advances toward her by
attempting to touch her breasts and buttocks, and
twisted her arm and pulled her hair [App. 52-53 and
122-133].
In addition, records indicate that Clifford’s
superior officer had had previous behavioral problems
with Sergeant Clifford and described him as being
“very quirky” [App. 42 and 44-45]. Nevertheless,
despite this, no action was taken against Sergeant
Clifford prior to his raping Petitioner.
In paragraph 14 of Petitioner’s Complaint [App.
21-23], she pled the United States of America owed six
(6) separate duties to her because she was a 17 year old
underage potential feriale Army recruit, all of which
duties would have arisen out of duties other
government employees owed to her, and would have
been independent of any duties which Clifford owed to
Petitioner. Those duties alleged in the complaint were
as follows:
a. Screen persons who would have this
responsibility, including Sergeant
Mark Clifford, before they were ever
allowed to assume this responsibly to
make certain such person do not, by
their actions or inactions, place
potential recruit’s health and safety at
risk; ~
b. Continue to monitor such persons
who had this responsibility and make
certain they were carrying out these
duties, including Sergeant Mark
Clifford;
c. To determine if such persons were
engaging in conduct which could
jeopardize a potential recruit’s health,
welfare and safety, including plaintiff;
d. To have’ guidelines in effect
concerning what recruiters could do in
regard to dealing with potential Army
recruits, including underage recruits,
underage female recruits and which
otherwise placed clear restrictions,
limitations and guidelines on what an
Army Recruiter can and cannot do to
aid and encourage a potential recruit
to join the United States Army;
e. Continue to monitor such persons to
see that they are following and
complying with the aforesaid
guidelines and taking appropriate
action against those persons if they do
not comply with these guidelines; and
f. To determine if such persons were
otherwise committing other negligent,
careless and unlawful acts which may
jeopardize the health, welfare and safe
of potential underage female recruits.
— ‘nent Apleaes se
ARGUMENT
I. DID RESPONDENT OWE PETITIONER, A
17 YEAR OLD FEMALE UNDERAGE
POTENTIAL ARMY RECRUIT, AN
AFFIRMATIVE DUTY TO PROTECT HER
FROM HARM WHILE SHE WAS _sIN
RESPONDENT'S CARE, AND DID
RESPONDENT OTHERWISE “TAKE
CHARGE” OF PLAINTIFF, BECAUSE SHE
WAS A MINOR, SUCH AS TO CREATE A
SPECIAL RELATIONSHIP WHICH ALSO
PLACED A DUTY UPON RESPONDENT TO
PROTECT PETITIONER FROM HARM
WHILE SHE WAS IN RESPONDENT'S CARE
AND CUSTODY?
By Respondent allowing Clifford to assume
responsibility for Petitioner, a 17 year old underage
female on December 31, 1997, Respondent created a
special relationship with her and therefore the
immunity it claims under 28 U.S.C.A. §2680 (h) should
not apply.
Although there is no general duty under West
Virginia law to protect others from harm, a duty arises
when a special relationship with the victim has
previously been established. Section 314A(4) of the
Restatement (Second) of Torts (1965), entitled “Special
Relations Giving Rise to Duty to Aid or Protect,”
provides that “One . . . who voluntarily takes the
custody of another under circumstances such as to
deprive the other of his normal opportunities for
protection is under a similar duty to the other.”
Comment b to §314A explains that:
The duties stated in this Section arise out
of special relations between the parties,
which create a special responsibility, and
take the case out of the general rule. The
relations listed are not intended to be
exclusive, and are not necessarily the ones
in which a duty of affirmative action for
the ... protection of another may be
found.
Id. at 119.
The Restatement (Second) of Torts also finds in
certain relations, a duty to protect others from third
persons, Section 320 states that:
One . . . who voluntarily takes the
custody of another under circumstances
such as to deprive the other of his normal
power of self-protection or to subject him
to association with persons likely to harm
him, is under a duty to exercise
reasonable care so to control the conduct
of third persons as to prevent them from
intentionally harming the other or so
conducting themselves as to create an
unreasonable risk of harm to him, if the
actor, (a) knows or has reason to know
that he has the ability to control the
conduct of the third persons, and
(b) knows or should know the
necessity and opportunity for exercising
such control.
Id. at 130.
Comment b of § 320, explains that, “[A] child
while in school is deprived of the protection of his
parents or guardian. Therefore, the actor who takes
custody of a prisoner or of a child is properly required to
give him the protection which the custody of the manner
in which it is taken has deprived him.” Id. at 131.
Additionally, Restatement (Second) of Torts §
324 (a)(1965), provides that:
One who, being under no duty to do so,
takes charge of another who is helpless
adequately to aid or protect himself is
, subject to liability to the other for any
bodily harm caused to him by,
(a) the failure of the actor to
exercise reasonable care to secure
the safety of the other while within
| the actor’s charge.
Id. at 139. Comment b explains that one can be
rendered helpless by virtue of his youth.
The emphasis of these sections is the fact that
plaintiff is in a position of trust or helplessness with the
person taking custody. Although there are no cases on
point in West Virginia where these sections have been
specifically applied, the legal principle embodied in
these sections are consistent with West Virginia tort
principles.
Further, West Virginia recognizes that
imposes a higher degree of care around children.
Voelker v. Frederick Business Properties Co., 195 W.Va.
246, 465 S.E.2d 246, 256 (1995). Accord Dailey v. Los
Angeles Unified School Dist., 2 Cal.3d 741, 470 P.2d 360,
364 (1970) (“Adolescent high school students are not
adults and should not be expected to exhibit that
“sr
the law
LaLA
9
degree of discretion, judgment, and concern for the
safety of themselves and others which we associate
with full maturity.”); Reid v. Young Men's Christian
Association, 107 Ill. App. 2d 170, 246 N.E.2d 20, 22
(1969) (“"The known characteristics of children should,
however, be taken into consideration in determining
whether or not sufficient care for the safety of a child
has been exercised in a particular case. Accordingly,
the fact that children cannot and do not ordinarily
exercise the same degree of prudence and care for their
own safety as adults, imposes on those by whose acts
Or omissions a child may be injured, the obligation of
exercising more vigilance and caution than might be
sufficient with respect to an adult’”); Waugh v. Duke
Corp., 248 F. Supp. 626, 630 (M.D.N.C. 1966) (“’. .. What
is reasonable care to one class of invitees might fall
short as to another. Those who invite children, who
have not arrived at the age of discretion, to go upon
their premises are required to exercise a relatively
higher degree of care for their safety than to adults.
That degree of care is commensurate with the
attending facts and circumstances of each case.’”); Allen
v. United States, 588 F. Supp. 247, 355 (D.Utah 1984),
rev'd on other grounds, 816 F.2d 1417 (10% Cir. 1987), cert.
denied, 484 U.S. 1004 (1988). (“In dealing with conduct
of potential danger to children, there is a duty to
observe extra caution for their safety. . . .”).
In recent cases, such as Doe v. United States, 838
F.2d 220m (7 Cir. 1988, where the courts have found
that the government had a duty to protect an
individual from harm, the duty was found to be based
upon the nature of the service the government
provided to the victim. West Virginia State cases that
have examined a special relationship exception to local
governmental immunity have held that:
10
To establish that a special relationship
exists between a local governmental entity
and an individual, which is the basis for a
special duty of care owed to such
individual, the following elements must be
shown: (1) an assumption by the local
governmental entity, through promises or
actions, of an affirmative duty to act on
behalf of the party who was injured; (2)
knowledge on the part of the local
governmental entity’s agents that inaction
could lead to harm; (3) some form of direct
contact between the local governmental
entity’s agent and the injured party; and
(4) that party’s justifiable reliance on the
local governmental entity's affirmative
undertaking.
Wolfe v. City of Wheeling, 182 W.Va. 253, 387 S.E.2d 307,
syl. pt. 2 (1989); cited with approval, Fisk v. Lemons, 201
W.Va. 362, 497 S.E.2d 339 (1997); Walker v. Meadows, 206
W.Va. 78, 521 S.E.2d 801 (1999).
The United States government assumed the
responsibility for Petitioner by virtue of her being an
underage female, minor child and a special relationship
was specifically created when Clifford picked up Sara,
a minor, took her to the GED exam, a requirement she
had to meet to be recruited, and promised to deliver
her back to her mother once the test was completed.
Petitioner was particularly vulnerable by virtue of her
minor status, and the government created in her a
sense of trust by the fact that the United States military
was assisting her with her career endeavors. Once
Respondent assumed responsibility for Petitioner, it
had a duty to protect her until she was delivered to a
11
reasonably safe place after her exam. The government
breached that duty by failing to properly screen,
monitor and supervise Clifford, which resulted in
Petitioner becoming intoxicated, passing out and her
being and sexually molested.
Il. | UNDER SHERIDAN V UNITED STATES, 487
U.S. 392 (1988), WERE RESPONDENT'S
EMPLOYEES NEGLIGENT IN ALLOWING
- ANOTHER GOVERNMENT EMPLOYEE TO
COMMIT A FORESEEABLE ASSAULT AND
BATTERY AGAINST PETITIONER, AND
WAS THIS ENTIRELY INDEPENDENT OF
THE ASSAILANT’S EMPLOYMENT STATUS
WITH RESPONDENT, OR ARE THE CLAIMS
OF PETITIONER, BARRED BY 28U.S.C.
§ 2680(H)?
Simply because Petitioner was assaulted and
battered, does not mean her claims against Respondent
are automatically barred under 28 USCA § 2680(h).
The Federal Torts Claim Act allows liability against the
United States “for money damages . . . for personal
injury .. . caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment . .
“ 28 US.C.A § 1346(b). There is, however, an
exception to that waiver of immunity for claims that
necessarily arise out of assault and battery. 28 U.S.C.A
§ 2680 (h). The “arising out of” language is the issue
before this Court.
In Sheridan v. United States, 487 U.S. 392, 108
S.Ct. 2449 (1988), this Court set forth that although the
words “any claim arising out of” an assault or battery
are broad enough to bar all claims based entirely on an
12
assault or battery, in at least some situations, the fact
that injury was directly caused by an assault or battery
will not preclude liability against the Government for
negligently allowing the assault to occur. Id. 487 US.
at 392, 108 S.Ct. at 2451. The intentional torts exception
is inapplicable to torts that fall outside of the Federal
Tort Claim Act’s general waiver of the Government's
immunity from liability, 487 U.S. at 392-93, 108 S.Ct. at
2451. Accordingly, the negligence of other government
employees who allow a foreseeable assault and battery
to occur may furnish a basis for Government liability
that is entirely independent of the _batterer’s
employment status. Id. Such is the case with
Petitioner.
Since this Court made its pronouncement in
Sheridan, Petitioner is not aware of this Court having
had before it a case to specifically address what facts
may allow a claim for a foreseeable assault and battery
to proceed against the government. Petitioner believes,
because of the peculiar facts of this case, this is such a
case.
Even before Sheridan, Courts were holding that
not all actions arising out of assault and battery are
barred by § 2680(h). In Bennett v. United States, 803 F.2d
1502 (9th Cir. 1986), the Ninth Circuit held that
plaintiff's claims for negligent hiring and supervision
against the United States were not barred by § 2680(h)
where students were molested by a teacher employed
at a Bureau of Indian Affairs boarding school who had
a criminal history of molesting children.
Then again in 1987, the Ninth Circuit held in
Kearney v. United States, 815 F.2d 535 (9! Cir. 1987), a
case where a private in the Army was a prisoner in
custody for an undisclosed military violation and for
rape of an enlisted woman, left the base, brought a
13
-
woman back to the base and killed her, that the
immunity under the assault and battery clause of 28
U.S.C. § 2680(h) is not for the purpose of avoiding
claims on the basis of respondent superior. The court
found that in situations such as one where the
negligence was that of the government in not properly
supervising a dangerous employee, the exception to the
waiver of immunity did not apply. The court in Kearney
also cited cases from other circuits that refused to apply
§ 2680(h) to bar plaintiffs’ claims when plaintiffs have
been assaulted and battered. See e.g. Underwood v. United
States, 356 F.2d 92 (5 Cir. 1966); and Loritts v. United
States, 489 F. Supp. 1030 (D. Mass. 1980).
A case that lends guidance to the facts at issue in
Petitioner’s case is the case of Doe v. United States, 838
F.2d 220 (7 Cir. 1988). An unidentified attacker on an
Air Force military base daycare center sexually
molested children while in the care and custody of the
daycare center. The parents of the children brought a
cause of action against the United States under the
Federal Torts Claim Act. The District Court granted
the government’s motion for summary judgment on
the grounds that plaintiff’s cause of action was barred
by 28 USC. § 2680 (h), the assault and battery
exception. The question on appeal was whether the
“arising out of” language concerning assault and
battery applied to plaintiff's claim.
The court in Doe found that the holding of
Panella v. United States, 216 F.2d 622 (24 Cir. 1954), that
claims against the government based solely on its
negligence are not barred by § 2680(h), has been
uniformly followed. The court then had to ask whether
the claim is barred where it is questionable whether the
assailant is the government employee.
14
es ee ee
The United States argued that if a government
employee was involved in the assault then the claim is
barred under § 2680(h). In disagreeing with the
government's position the court states that, “We respect
the government's proffered approach. Its ease of
application is obvious; nonetheless, it cuts too rough a
path and unnecessarily thwarts apparent congressional
intent. Hence, we join every court to have decided the
narrow question presented here in creating a less
extreme, yet unambiguous, rule.” Doe, 838 F.2d at 222.
The court focused instead on the existence of an
affirmative duty owed to the victim expressly assumed
by the government. The court found that, “Where the
government affirmatively assumes a duty to the victim
prior to the assault, and the government breaches that
duty causing injury to the victim, we cannot say that
her claim arises out of the assault. Rather, it arises out
of the breach of that affirmative duty.” Id. at 223.
The issue becomes whether if you remove the
assault from the equation, will the government's
liability still exist. Responded in previous briefs field
before the District Court or the Court of Appeals. The
defendant in Doe cited numerous cases as to why
plaintiffs claim should be barred. See Sheridan v.
United States, 823 F.2d 820 (4 Cir. 1987); United States
v. Shearer, 473 U.S. 52 (1985); Thigpen v. United States,
800 F.2d 393, 394 (4th Cir. 1986); Johnson v. United States,
788 F.2d 845 (2d Cir.), cert. denied, 479 U.S. 914 (1986);
Miele v. United States, 800 F.2d 50 (24 Cir. 1986);
Satterfield v. United States, 788 F.2d 395 (6% Cir. 1986);
Hoot v. United States, 790 F.2d 836 (10% Cir. 1986); Garcia
v. United States, 776 F.2d 116 (5 Cir. 1985). The court.
in Doe v. United States, distinguished all those cases by
finding that either no affirmative duty was pled by the
plaintiff or simply that no affirmative duty existed on
15
the part of the government to protect the plaintiff prior
to the assault.! Doe, 838 F.2d at 224. In those cases, the
assault itself was the only relationship the government
shared with the victim. Such is not the case with
Petitioner - she pled an affirmative duty on the part of
Respondent, and she had a separate relationship
(underage potential Army recruit) with the
Government apart from the assault.
In 1995, the United States District Court for the
District of Massachusetts applied the affirmative duty
test in a case involving the wife of an army officer who
was raped and murdered by an enlisted man while
living in a military base. In Mulloy v. United States, 884
F. Supp. 622 (D.Mass. 1995), the court found that the
United States was in a special relationship with the
victim because she was both an invitee and tenant on
an Army base. Because of this special relationship, the
government owed the victim a duty of reasonable care.
The government breached this duty of care and as
such, the court found that the immunity under
§ 2680(h) did not apply. As stated in the opinion, the
question is “whether the [government], through a
breach of duty, permitted a person, employee or
otherwise, to commit an intentional tort against the
plaintiff.” Id. at 632.2 |
i Although the facts in Garcia are similar to those in the case
at bar, plaintiff in Garcia failed to plead that the Government
owed a duty to protect the plaintiff prior to the assault. Whether a
special relationship between the plaintiff and the Government was
created was never addressed by the court.
2 Based upon its reasoning the court found that it did not
matter whether the government's negligence led to an assault by a
third party, or by an assault be a government employee acting
outside the scope of his employment, the government could still be
held liable. Mulloy at 629-630.
16
However, as the above cases have allowed cases
of this type to proceed, rulings by numerous other
Untied States Courts of Appeals Courts have held
otherwise, by way of example such as in Perkins v.
United States, 55 F. 3d 910 (4% Cir. 1995) and Sheridan v.
United States, 969 F.2d 72 (4 Cir. 1995).
In this case Respondent was aware of previous
“behavioral problems” with Clifford, who it knew was
married, and knew he was “very quirky.” Further, not
two months before plaintiff was sexually assaulted
Clifford had made sexual advances to another 18 year
old female potential Army recruit.
On the very night Clifford got Petitioner drunk
he did so in the presence in of his fellow recruiters,
who knew that Petitioner was so drunk she had passed
out amd had to be physically carried out to a
government vehicle to be driven by Clifford in Army
attire from the bar. During this period of time, no one
attempted to intervene on Petitioner’s behalf, or even
question the situation, except to ask if she “okay.”
Clifford’s fellow recruiters knew he was married
and saw he was in a bar with an obviously much
younger female, both of whom were drinking alcoholic
beverages while Clifford was in Army attire, and
Adkins admits it is not acceptable for a recruiter to
purchase alcoholic beverages for a potential recruit.
Nevertheless, upon entering a bar and finding Clifford,
in Army attire with a much younger female, Adkins
made no attempt to make inquiry about the situation or
to prevent Clifford from purchasing alcoholic beverages
for an underage potential recruit. It is implausible to
think that Petitioner’s age and status as a potential
recruit would not have come up in a conversation
between Clifford’s fellow Army recruiters who were at
Griff’s that night, since people do not simply sit at a
17
table in a bar and stare at each other silently, especially
when their buddy is a married Army recruiter.
Further, Clifford’s other fellow recruiters, who
knew Clifford was married, made no effort to intervene
when it was obvious Clifford was with a much younger
female, drinking alcoholic beverages while Clifford was
in Army attire, when they could see the state of
Petitioner’s inebriation and that she had to be carried,
unconscious, out of the bar by others and put into a
Government vehicle, which was going to be driven by
Clifford who also had been drinking, even though
Blevins obviously thought that something was amiss
because he later reported the incident to First Sergeant
Adkins. ;
The Government owed Petitioner an affirmative
duty to ensure her safety in the presence of its recruiter.
Because Petitioner was a potential recruit, the assault
itself is not the only relationship she had with the
government, thus, an affirmative duty existed on the
part of the Government to protect her, and Respondent
breached this duty. Further, because Petitioner was a
minor, there was a special relationship created the
moment Sergeant Clifford took Petitioner into his care
and custody, and Respondent had a duty to protect
Petitioner since she had been deprived of the protection
of her mother, and Respondent breached this duty.
Had Petitioner not become inebriated to the
point of unconsciousness, she could have refused to
leave the bar with Sergeant Clifford; refused to go into
the motel room with Sergeant Clifford; refused to
undress and shower with Sergeant Clifford; and
refused to have sex with Sergeant Clifford. As a direct
result of the negligence of Respondent’s employees
other than Clifford, Petitioner was raped, injured and
has sustained damages.
18
CONCLUSION
This case presents a unique opportunity for this
Court to decide for itself whether the peculiar facts of
this case where Respondent assumed the responsibility
for a 17 year old underage female potential Army
recruit, fall within the exception which this Court has
set forth in Sheridan.
It is the position of the Petitioner that the duties
which Petitioner alleged were owed to her in this case
and as were alleged in her complaint, are duties which
other government employees owed to her, which were
independent of the duties/which Clifford owed to her.
If this is the case, then Petitioner’s claim would not
arise out of an assault and battery and would not be
barred by 28 U.S.C.A. § 2680(h).
Respectfully Submitted,
Robert A. Taylor
Counsel of Record
181 Summers St.
Charleston, West Virginia 25301
(304) 342-3106
Counsel for Petitioner
Sara Elizabeth Lilly
19
TABLE OF CONTENTS
Appendix to Petition
Page
Opinion
United States Court of Appeals
for the Fourth Circuit
entered December 20, 2001............ccceseseseees App. 1
Opinion and Order of is
The Honorable Joseph R. Goodwin
Re: Granting Defendant’s Motion to Dismiss
entered May 11, 2001 sasensensasascasensesacessecssenees App. 3
Excerpts of Joint Appendix
Lilly v. United States of America
Fourth Circuit Record No. 01-1760
filed August 28, 2001:
Docket Entries
CREE App. 13
Complaint
dated October 27, 2000.............+ App. 19
Defendant's Motion to Dismiss for
Lack of Subject Matter Jurisdiction,
or in the Alternative, Failure to
State a Claim
dated December 12, 2000............... App. 25
Excerpts of Joint Appendix
Lilly v. United States of America
Fourth Circuit Record No. 01-1760
filed August 28, 2001, (continued)::
Affidavit of
Sara Elizabeth Lilly
dated January 15, 2001 .................. App. 27
Affidavit of Pamela Lilly
dated January 15, 2001 ................... App. 31
Affidavit of Randy West,
with Attachments,
dated January 19, 2001 ................ App. 34
App. il
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1760
SARA ELIZABETH LILLY,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the
- Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge. (CA-00-1006-2)
Submitted: December 14, 2001
Decided: December 20, 2001
[Entered: December 20, 2001]
Before WIDENER, WILLIAMS, and GREGORY,
Circuit Judges.
App. 1
Affirmed by unpublished per curiam opinion.
Robert A. Taylor, MASTERS & TAYLOR, LC.,
Charleston, West Virginia, for Appellant. Robert D.
McCallum, Jr., Assistant Attorney General, Charles T.
Miller, United States Attorney, Anthony J. Steinmeyer,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this
circuit. See Local Rule 36(c).
PER CURIAM:
Sara Elizabeth Lilly appeals from the district
court's order granting the United States' motion to
dismiss, under Fed. R. Civ. P. 12(b)(6), her complaint
filed under the Federal Tort Claims Act, 28 U.S.C.A.S
1346(b) (West Supp. 2001), 28 U.S.C.A. SS 2671-2680
(West 1994 & Supp. 2001). We have reviewed the
parties' briefs, the joint appendix, and the district
court's opinion and find no_ reversible error.
Accordingly, we affirm on the reasoning of the district
court. Lilly v. United States, No. CA-00-1006-2 (S.D.W.
Va. May 11, 2001). We dispense with oral argument
because the facts and legal contentions are adequately
presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
SARA ELIZABETH LILLY,
Plaintiff,
V. CIVIL ACTION NO. 2:00-1006
THE UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
[Entered: May 11, 2001]
Pending before the court is the Motion to
Dismiss for lack of Subject Matter Jurisdiction or, in the
Alternative, Failure to State a Claim, filed by the
United States of America (United States). For the
reasons discussed below, the motion is GRANTED.
STATEMENT OF FACTS
Because the court now decides a motion to
dismiss filed by the United States, it accepts as true the
facts as alleged by the plaintiff. In 1997, the plaintiff, a
seventeen year-old girl who had dropped out of high
school, contacted the Army recruiting office in
Charleston, West Virginia. She spoke with Sergeant
Mark Clifford (Clifford), an Army recruiter. Clifford
contacted the plaintiff at least twice and arranged for
her to take the G.E.D. exam, an exam she was required
to pass to enlist in the Army. Clifford also offered to
take the plaintiff to the test location.
App. 3
esas nara ne.
On December 30, 1997, the plaintiff's mother took
her to the St. Albans Library to meet Clifford, so that he
could take the plaintiff to the exam center. When the
plaintiff and Clifford reached the exam center, it was
closed. The two then went to lunch, saw a movie, and, at
Clifford’s suggestion, went to a bar, where Clifford
purchased several alcoholic drinks for the plaintiff. The
plaintiff became so intoxicated that she vomited on her-
self and passed out on the bar. Clifford and some other
individuals carried the plaintiff from the establishment
and placed her in Clifford’s car. While the plaintiff was
unconscious, Clifford took her to a motel, where he took
a shower with her and had sexual relations with her. In
the complaint, the plaintiff alleges that:
the USA, in allowing Sergeant Mark
Clifford to do those things as may be
necessary to encourage potential Army
recruits to join the United States Army,
including encouraging underage persons
to join, assumed the responsibility for the
welfare and safety of underage potential
army recruits, including plaintiff, when it
allowed Sergeant Mark Clifford to assist
plaintiff, pick her up and take her to take
the GED test, all of which actions were in
furtherance of plaintiff's desire to join the
United States Army and in furtherance of
the United States Army and USA
attempts and plans to encourage persons
to join the United States Army.
Comp., at § 13. The plaintiff further argued that, “in
assuming the responsibility for the welfare and safety
of underage potential Army recruits,” the United States
App. 4
had a duty to screen and monitor recruiters; to
determine whether recruiters were engaging in
potentially dangerous conduct with recruits; and to
have guidelines in effect which governed “what
recruiters could do in regard to dealing with potential
Army recruits, including underage recruits, [and]
underage female recruits” ad which otherwise placed
clear restrictions, limitations and guidelines on what a
recruiter could and could not do to aid and encourage
a potential recruit to join the Army. Id. at § 14. The
plaintiff seeks $1,000,000 in damages for a variety of
injuries, including medical care and counseling,
emotional distress, and loss of enjoyment of life.
STANDARD
A court deciding a motion to dismiss accepts as
true the factual allegations presented in the complaint.
Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.
1997). Unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of [her] claim
which would entitle [her] to relief, the court will not
grant a motion to dismiss. Id. Therefore, the plaintiff's
allegations are accepted as true.
DISCUSSION
Pursuant to the doctrine of sovereign immunity,
the United States cannot be sued unless it has
consented to be sued. Congress has waived sovereign
immunity, thus granting this consent, for some actions
against the United States. The Federal Tort Claims Act
(FTCA) provides that the United States can be sued
“for money damages ... for personal injury . . . caused
|
by the negligent or wrongful act or omission of any
employee of the Government while acting within the
scope of his office or employment, under circumstances
where the United States, if a private person, would be
liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C. §
1346(b). However, Congress has not waived such
immunity for claims that necessarily arise from assault
and battery. 28 U.S.C. § 2680(h).
Exceptions to the waiver of sovereign immunity
by the United States are construed broadly and any
ambiguities are resolved against the party seeking
recovery from the United States. Thigpen v. United 3
States, 800 F.2d 393, 394 (4th Cir. 1986), overruled on - ?
other grounds by Sheridan v. United States, 487 U.S. 392
(1988) (“Only when Congress has clearly and
unequivocally expressed its consent to suits against the
United States may courts entertain such actions.”). In
Sheridan v. United States, however, the Supreme Court
noted that, “in at least some situations the fact that an
injury was directly caused by an assault or battery will
not preclude liability against the Government for
negligently allowing the assault to occur.” Sheridan, 487
US. at 398.
The United States argues that the plaintiff's
injuries arise from an assault and battery committed by
Clifford and that the claims are thus barred by 28
U.S.C. § 2680(h). The plaintiff asserts that the claims
arise from the government's negligence, not from the
assault and battery, and are not barred by § 2680(h).
Specifically, the plaintiff asserts claims that the United
States 1) negligently hired, trained, and supervised its
recruiters, including Sergeant, Clifford, and 2) took
charge of the plaintiff, creating a special relationship
App. 6
that placed a duty on the United States to protect the
plaintiff from harm. The court FINDS that the
plaintiff's claims against the United States are barred
by § 2680(h). Therefore, the motion to dismiss is
GRANTED.
:* Plaintiff's Negligent Hiring, Training,
and Supervision Claim
The legislative history and the wording of the
exclusions in § 2680 make it clear that Congress
intended to ensure that the United States would not be
held liable for the intentional actions of its employees.
The Fourth Circuit's treatment of negligent hiring and
supervision claims reflects this reading of § 2680 and
its legislative history. Allowing an action to proceed
based on the government's negligent hiring or
supervision of employees who commit intentional torts
would enable plaintiffs to make an end-run around the
exclusions embodied in § 2680 and could effectively
eclipse the exclusions.
The Fourth Circuit has been clear in its refusal to
allow claims to proceed based on a theory that the
United States negligently hired or supervised an
employee who committed an intentional tort. In
Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986),
overruled on other grounds by Sheridan v. United States,
487 U.S. 392 (1988), the Fourth Circuit affirmed the
dismissal of an FTCA claim brought on behalf of
minors who were sexually molested by a naval hospital
employee. Id. at 398. The court rejected the plaintiff's
argument that the hospital was negligent in its
supervision of the attacker, finding that the claim was
barred by § 2680(h):
App. 7
Section 2680 thus bars FTCA claims that
allege the negligence of supervisors but
depend on the existence of an assault or
battery by a government employee. Many
assaults can be attributed easily enough
to someone’s negligence in permitting the
attack to take place. To hold such
allegations actionable under the FTCA
would undermine Congress’ clear intent
to limit its waiver of immunity in §
2680(h).
Id. at 395.
In Sheridan, decided after the Fourth Circuit's
decision in Thigpen, the Supreme Court addressed the §
2680(h) exception, but refused to address the plaintiff's
claim that the United States had negligently hired and
supervised the employee who committed the
intentional tort in that case. Sheridan v. United States,
487 U.S. 392, 403 n.8 (1988) (“[I]t is not appropriate in
this case to consider whether negligent hiring,
negligent supervision, or negligent training may ever
provide the basis for liability under the FTCA for a
foreseeable assault or battery by a Government
employee.”). The Fourth Circuit has not reconsidered
its reading of § 2680(h) in the time since Sheridan was
decided. Therefore, this court’s treatment of the
negligent hiring, training, and supervision claims is
governed by the Fourth Circuit decisions preceding
Sheridan. .
To the extent the plaintiff argues that the United
States negligently hired, trained, and retained Clifford,
her claims are barred by § 2680(h).
App. 8
_ Plaintiff’s Claim That the United States
Assumed an Affirmative Duty of Care
The plaintiff's claim that the United States
assumed and breached an affirmative duty of care
toward her presents a more difficult question. In
Sheridan, the Supreme Court unequivocally found that
plaintiffs may proceed against the United States in
some cases in which the plaintiff's injuries occur from
an assault or battery. Several courts have allowed such
cases to proceed when a special relationship existed
between the plaintiff and the United States such that
the United States had assumed an affirmative duty of
care in relation to the plaintiff. In each of those cases,
however, the government allegedly had breached its
duty to the plaintiff through an act of negligence by a
federal employee other than the intentional tortfeasor
and such act was independent of the intentional tort.
See, e.g., Sheridan v. United States, 487 U.S. 392 (1988)
(failure of navel corpsmen to report drunken
serviceman brandishing gun was negligent); Bembenista
v. United States, 866 F.2d 493 (D.C. Cir. 1989) (army
hospital negligently mismedicated patient, rendering
her helpless against sexual molestation by medical
technician); Doe v. United States, 838 F.2d 220 (7th Cir. ©
1988) (government day care workers negligently left
children unsupervised at Air Force base day care
center, enabling children to be molested by unknown
assailant); Loritts v. United States, 489 F. Supp. 1030 (D.
Mass. 1980) (after volunteering to provide escorts to
members of visiting choral group, West Point failed to
provide escort to plaintiff, who was member of group
and who was raped while walking unescorted around
campus).
App. 9
In her Memorandum in Opposition to
Defendant's Motion to Dismiss, the plaintiff claims that
the government would be liable if Clifford had taken
the plaintiff to the exam location, then had driven her
to a remote and dangerous area and left her there,
where she was raped or killed. Therefore, the plaintiff
argues, it would be anomalous to find that the United
States is shielded from liability because Clifford was
the assailant. Pl’s. Mem. at 12. This court disagrees. The
distinction between the two situations is illustrated, in
part, by the plaintiff's own argument: She argues that
her cause of action against the United States “arose
from a duty that existed before the commission of the
tort.” Id.. Perhaps the United States owed the plaintiff a
duty that existed prior to the intentional tort; however,
the only alleged breach of that duty occurred when
Clifford committed the intentional tort.
Sergeant Clifford met the plaintiff at the library
to take her to the exam; Sergeant Clifford took her to
lunch, the movies, and the bar; Sergeant Clifford
bought her drinks until she passed out; Sergeant
Clifford then took the plaintiff to a motel, where he
raped her. It is impossible to separate Clifford's
intentional acts from any negligent acts of the United
States. The United States can only be held liable for the
acts of its employees. See 28 U.S.C. § 1346(b). Therefore,
the plaintiff cannot allege that the United States
breached a duty to her unless she can show that a
specific United States employee, other than the
intentional tortfeasor, negligently breached a duty to
her. This case, which involves only one government
actor, is distinguishable from Sheridan, Doe, and the
other cases in which plaintiffs have avoided dismissals
because of § 2680(h). Even if the United States did
App. 10
assume an affirmative duty of care toward the plaintiff,
the plaintiff cannot show that the United States
breached that duty independent of Sergeant Clifford’s
intentional acts, and the United States is not liable for
the intentional torts of its employees.
CONCLUSION
The Supreme Court has not resolved the issue of
whether § 2680(h) bars claims that the United States
negligently hired, trained, and supervised employees
who later committed assault and battery. Therefore,
this court’s decision is constrained by the Fourth
Circuit caselaw on the issue. Because the Fourth circuit
has found that such claims are barred by § 2680(h), the
plaintiff cannot proceed on her claims that the United
States negligently hired, trained, and supervised
Clifford.
The Supreme Court has found that some claims
by plaintiffs who were assaulted by a governmental
employee are not barred by § 2680(h). However, each
of those cases involved negligence by the government
that was independent of the intentional assault or
battery. To the extent the United States assumed an
affirmative duty of care toward the plaintiff in this
case, the only alleged breach of that duty is the
intentional conduct of Clifford.
Congress specifically excluded intentional torts
from the government's waiver of sovereign immunity.
Because the plaintiff does not present claims for
government negligence that occurred independent of
Clifford’s actions, the plaintiffs’ claims are barred by §
2680h).
App. 11
/ Consequently, the plaintiff has not alleged a
claim for which relief can be granted, Aeeordingly, the
defendant's motion to dismiss jy (HAN TED
The court DIRECTS thy ( jayk ty 1) aeriel a eupy
of this Order to counse) «f papi ane any
unrepresented party and 2) jijlijal Hie pile a
www.wvsd.uscourts.gov.
ENTER: May 11, 2001
JOSEPH R. GOODWIN
UNITED STATES DISTRICT JUDGE
Robert A. Taylor
Masters and Taylor, L.C.
181 Summers Street
Charleston, WV 25301
For Plaintiff Sarah Elizabeth Lilly
Stephen M. Horn
Kelly R. Curry
United States Attorney’s Offip®
300 Virginia Street, East
Charleston, WV 25301
For Defendant United States })} Aj)\p) ipa
APE 42
Doeket as of Jute 5, 2001 3:18 pin Page 2
Proceedings include all events APPEAL CLOSED
Dovey Lilly Vo Uitted States
Ae ALL CUMPLAINT, Fill Pee @tSt in)
Heewipt PAR (ake) TRAHY ate
i/ 41/00
bis aes bUMMUINGRS jesued, arleiial
ps / capies, far United States
eturnable days: 60. (skh) [Entry
date 10/31/00)
10/27/00 2 CERTIFICATE OF SERVICE by
Sara Elizabeth Lilly for first set of
interrogatories and first request for
production of documents to deft.
(skh) [Entry date 10/31/00]
10/27/00 -- CASE assigned to Judge Joseph R.
Goodwin (ras) [Entry date
11/01/00)
1/2/00 j SUMMONS Returned Executed by
personal service aa ta Uiied Slalea
ni Oo Aeriga «6A Fame
Write Ah Paha ab We be
Al AA TAL SHU AR RP Hie
WH AAS SU Pe Dee Gabe aE
AWeHed LHRW)
Hyiaynb SUMMONS Baeeuted By bert Hall
48 th US, Dept of Atty, US.
Claith Service, ot behalf of the
United States on 11/2/2000,
w/cert. mail return receipt card
executed by an agent of same
App. 13
11/17/00
12/12/00
12/12/00
14/14/10)
13/15/00
attached, (answer deadline
previously set for 1/1/2001) (skh)
SUMMONS Bxeetited by cert Hail
de 6) Whited Slates Abbariey
Hieneralle office, ah Behalf af
Wied Slalee en LI HAY s00
w/eerh Hall PeRHA Feeelpt Kare
beneHled by " ABO HE Hie aaiie
abae Hee (ater Healiive
fevinualy eet ce 1/4/4001)
ikw) een heel (0)
States to
Dismiss er my n subject matter
jurisdiction or, in the alternative, to
Dismiss for failure to state a claim.
(skh) [Entry date 12/15/00]
MEMORANDUM OF LAW by
United States in support of [6-1]
— to- Dismiss for lack of
subject matter j iction or, in the
alternative, [6-2] mation ta Dismiss
for falluye f@ alate a claim, (abh)
Prviey ate Vay ay Hi)
AN@WEB la Pamplaint by UBS
ar HI ‘eee i i Hiiny nay
) (RAY dale
a)
19/18 ie
OKO ND NOTER: Rule 19H)
HHBHBHs «= W/ aU PUFHAB = BHefs
1/16/2001; fr Matagettent
Cotiferetice 1/23/2001 1:30; Last
day for Rule 26(f) meeting
2/9/2001; Last day to file Rule 26(f)
meeting report 2/16/2001;
App. 14
14/48/00)
bay aay (MN)
19/97/00
il)
1
\)
Scheduling/ status Conference with
the Court 1:30 3/2/2001; Batey of
irate Order dive BY
4/19/2001; Laat day te Hake Rule
J6 (a) (1) dimelowuree 4/18/2001,
(aigied by Jelge fadeph Pt
HivdelWiK) (eeLaELYa) HARE BRRRB Hed
parney uh) [Raley cate 14/ 1A/ 0)
HPULATION ORDER Wpan
agreement af the partes, Mis
Respense due by 1/19/2001 far
govi's [6-1] mation ta Dismiss far
lack of subject matter jurisdiction
or, in the alternative, [6-2] motion
to Dismiss for failure to state a
claim; Deft’'s Reply to Pltf's
Response to said Motion due by
2/1/2001; directing that the same
be the finding of his court and that
the parties have until such times to
file theiy yespansive brief, (signed
hy Judge Joseph RB, Gaadwin) (pe:
atiya) (pall) | |
MHTIEIN hy Liviiiel Bala ba Blay
(Wet) Cray ale Naten WAH He
neviht eleeelaie Hie aria fed | aval TR
| HHH be Hee, It
ORDER BAHHNe derls ge
HUHBH tH Slay Hv Orde AH
Notice HH the cotitt decides the
def’s [6-1] atid [6-2] motion to
distniss; all proceedings are stayed
pending the resolution of the
Motion to Dismiss previously filed
App. 15
1/16/01
1/16/01
1/17/01
3/28/01
13
14
15
16
by the deft. (signed by Judge
Joseph K. Goodwin) (cc: attys, and
any unrepresented party) (mkw)
[Edit date 12/28/00]
NOTICE and MOTION by Sara
Elizabeth Lilly to Stay and/or
Extend all deadlines and to Extend
Time and otherwise Stay pltf
having to respond to the United
States’ motion todismiss. (skh)
ORDER staying all proceedings in
this matter pending further notice;
extending the time for pltf to
respond to deft’s [6-1] motion to
Dismiss for lack of subject matter
jurisdiction and [6-2] motion to
Dismiss for failure to state a claim
until 5/1/01. (signed by Judge
Joseph R. Goodwin) (cc: attys;
any unrepresented party) (skh)
RESPONSE by United States of
America to pltf’s [13-1] motion to
Stay. (mkw)
MEMORANDUM by Sara
Elizabeth Lilly in opposition to
deft’s [6-1] motion to Dismiss for
lack of subject matter jurisdiction
and [6-2] motion to Dismiss for
failure to state a claim, with
affidavits of Sara Elizabeth Lilly,
Pamela Lilly, and Randy West
attached. (pdb) [Edit date 03/28/01]
App. 16
4/4/01
5/11/01
5/11/01
5/11/01
17
18
19
REPLY BRIEF by United States to
pit!’s [1612] memorandum in
opposition to deft’s [6-1] motion to
Dismiss for lack of subject matter
jurisdiction and [6-2] motion to
Dismiss for failure to state a claim.
(skh) [Entry date /4/05/01]
OPINION AND ORDER granting
deft's [6-1) motion to Dismiss for
lack of subject matter jurisdiction;
granting deft's [6-2) motion to
Dismiss for failure to state a
claim, finding the pltf's claims
against the United States are
barred by 28 U.S.C. 2680 (h) and
that pltf has not alleged a claim for
which relief can be _ granted.
(signed by Judge Joseph R.
Goodwin) (cc: attys; any
unrepresented party) (published
on the court's website at
www.wvsd.uscourts.gov) (skh)
JUDGMENT ORDER in
accordance with the accompanying
opinion and order, _ entering
judgment in favor of the deft;
dismissing and striking this case
form the docket of this court.
(signed by Judge Joseph R.
Goodwin) (cc: attys; any
unrepresented parties) (skh)
Case closed. (skh)
App. 17
5/29/01 20 NOTICE OF APPEAL by Sara
Elizabeth Lilly of the [18-1) opinion
and order and [19-1) judgment
order entered 5/11/01. (skh)
5/30/01 21 Notice of Appellate Action with
certified copy of docket, opinion
and order, judgment order and
notice of appeal to 4CCA: [20-1]
appeal by Sara Elizabeth Lilly. (cc:
attys) (skh) [Edit date 06/04/01]
5/30/01 - Appeals packet mailed to
pltf/ appellant's counsel, Robert A.
Taylor. (skh)
5/31/01 -- Filing Fee Paid for pitf’s [20-1]
notice of appeal; FILING FEE
$105.00; RECEIPT #8711. (skh)
App. 18
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
SARA ELIZABETH LILLY
Plaintiff,
v. Civil Action No. 2:00-1006
THE UNITED STATES OF AMERICA,
Defendant.
COMPLAINT
Comes now plaintiff, Sara Elizabeth Lilly, for her
complaint against the defendant, The United States of
America, and alleges and avers as follows:
1. Sara Elizabeth Lilly is a resident of
Kanawha County, West Virginia.
2. Jurisdiction is asserted against the United
States of America [USA] pursuant to 28 U.S.C. 1346,
more commonly known as the Federal Tort Claim Act.
3. Plaintiff has complied with the provisions of 28
U.S.C. 2675 and has provided proper notice of the claim
to the United States Department of the Army, as will
more fully appear from the Notice and Response
appended hereto and incorporated herein by reference
as Exhibit A.
4. The plaintiff, Sara Elizabeth Lilly, filed her
Federal Torts Claim with the appropriate Government
Agency within two years from the date she knew or
should have known that the negligent acts, as hereafter
alleged, had been committed against her, and further,
more than six months have elapsed since the filing of the
claim without the United States Department of the Army
taking any action on the claim, and because of the
Army’s failure to respond in the time provided by law,
App. 19
your plaintiff can now file her lawsuit with the United
States Federal District Court.
4 Plaintiff's claim against the defendant,
USA, arises out of actions directed toward her by a
United States Army Recruiter, Sergeant Mark Clifford,
who was, at all times mentioned herein, located and
stationed at the United States Army Recruiting office
located in South Charleston, West Virginia, at River
Walk Mall, and all of his actions as hereafter alleged took
place in Kanawha County, West Virginia.
6. That at the time Sergeant Mark Clifford
engaged in the conduct complained of as hereafter
alleged, plaintiff was seventeen years of age.
r That prior to December 30, 1997, your
plaintiff had dropped out of high school and realized she
needed to get an education and decided one of the best
ways to do so was by joining the Army so she could get
her GED and a college degree. Further, plaintiff
contacted the Army Recruiting Office in South
Charleston, West Virginia, and spoke with Sergeant
Mark Clifford at this office on several occasion during
the month before December 30, 1997.
8. That when plaintiff dealt with Sergeant
Mark Clifford, she advised him she was 17 years of age,
and she was a high school drop out, and the reason she
wanted to join the Army.
9. That Sergeant Mark Clifford came to
plaintiff's mother’s home to administer a test to plaintiff
and to also make arrangements for plaintiff to take a
GED test on December 30, 1997. Clifford did thereafter
pick plaintiff up and take her to Garnet Education Center
where plaintiff was told the test would be given.
However, when plaintiff arrived at Garnet Education
Center, she learned that Garnet was closed. Sergeant
App. 20
Mark Clifford thereafter took plaintiff to lunch, a movie,
and the Kanawha Mall. Following the movie, Sergeant
Clifford took plaintiff to a restaurant known as Griff’s in
South Charleston, West Virginia, which is in the same
shopping mall where the Army Recruiter office is
located at which Sergeant Mark Clifford worked.
10. That Sergeant Mark Clifford, while at
Griff’s, purchased numerous alcoholic drinks for
plaintiff, which she consumed and caused her to get
drunk, vomit on herself, and pass out.
11. That while plaintiff was passed out and
otherwise incapacitated by her alcoholic intoxication,
_ Sergeant Mark Clifford, had sex with her.
12. That all actions taken by the Sergeant
Mark Clifford toward plaintiff as herein before described
were taken under the guise of, in his Capacity as, and
under the apparent authority in his role as a United
States Army Recruiter, for USA.
13. That the USA, in allowing Sergeant Mark
Clifford to do those things as may be necessary to
encourage potential Army recruits to join the Untied
States Army, including encouraging underage persons to
join, assumed the responsibility for the welfare and
safety of underage potential Army recruits, including
plaintiff, when it allowed Sergeant Mark Clifford to
assist plaintiff, pick-her up and take her to take the GED
test, all of which actions were in furtherance of plaintiff's
desire to join the United States Army and in furtherance
of the United States Army and USA-attempts and plans
to encourage persons to join the United States Army.
14. That USA and the United States Army in
assuming the responsibility for the welfare and safety of
underage potential Army recruits as aforesaid,
App. 21
including plaintiff, had a duty to, including a duty as to
Sergeant Mark Clifford to:
a. Screen persons who would have
this responsibility, including Sergeant Mark
Clifford, before they were ever allowed to
assume this responsibly to make certain such
person do not, by their actions or inactions,
place potential recruit’s health and safety at risk;
b. Continue to monitor such persons
who had this responsibility and make certain
they were carrying out these duties, including
Sergeant Mark Clifford;
C. To determine if such persons were
engaging in conduct which could jeopardize a
potential recruit’s health, welfare and safety,
including plaintiff;
d. To have guidelines in effect
concerning what recruiters could do in regard to
dealing with potential Army recruits, including
underage recruits, underage female recruits and
which otherwise placed clear restrictions,
limitations and guidelines on what an Army
Recruiter can and cannot do to aid and encourage
a potential recruit to join the United States Army; ~
e. Continue to monitor such persons
to see that they are following and complying
with the aforesaid guidelines and _ taking
appropriate action against those persons if they
do not comply with these guidelines; and
f.° ._To determine if such persons were
otherwise committing other negligent, careless
and unlawful acts which may jeopardize the
health, welfare and safe of potential underage
female recruits.
App. 22
15. That USA negligent, careless and
unlawfully breached its duties as aforesaid, that it owed
to the plaintiff and as a direct and proximate result of
the negligence of the defendant as aforesaid, plaintiff
has suffered the following injuries and damages:
a. She was_ subject to an
unauthorized touching of her body;
b. Required her to seek medical care
and counseling, and it may require her to seek
the same in the future;
¢. Caused her to suffer and she will
continue to suffer in the future great emotional,
mental pain and distress, embarrassment, loss of
self esteem and self confidence and damage to
her psyche;
d. It negatively effected her ability to
interact with and get along with family and
friends and caused her to move away from them ;
e. It has caused her to suffer and she
will continue to suffer in the future a loss of
enjoyment of life;
f. She has suffered financial losses in
the form of costs related to medical care and
counseling and it is unknown at this time if she
may need to incur future medical care. and
expenses for the treatment of the aforesaid
injuries; and
g. She has otherwise been injured
and damaged in ways and in an amount to be
determined by the Court.
App. 23
WHEREFORE, the plaintiff, Sara Elizabeth Lilly,
requests an advisory trial by jury, and judgment of and
from the defendant, USA, in the sum of $1,000,000.00,
together with interest and costs as allowable by law.
SARA ELIZABETH LILLY,
By Counsel
/S/ Robert A. Taylor
Robert A. Taylor (WV Bar No. 3710)
Paula L. Wilson (WV Bar No. 6101)
Masters & Taylor, L.C.
181 Summers Street
Charleston, West Virginia 25301
(304) 342-3106
App. 24
. IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
SARA ELIZABETH LILLY,
Plaintiff,
V. Civil Action No. 2:00-1006
UNITED STATES OF AMERICA,
Defendant.
UNITED STATES MOTION TO DISMISS FOR LACK
OF SUBJECT MATTER JURISDICTION OR,
IN THE ALTERNATIVE, FAILURE
TO STATE A CLAIM
Comes now the United States of America
(“United States”) pursuant to Rule 12 (b) (1) and 12 (b)
| (6) of the Federal Rules of Civil Procedure and does
hereby move the court to enter an order dismissing this
action for lack of subject matter jurisdiction or, in the
alternative, for failure to state a claim on which relief
can be granted.
In support of its motion, the United States
Says:
App. 25
5 Accepting the plaintiff's allegations as
true, the United States has not waived its sovereign
immunity for’an assault and battery committed by a
federal employee acting within the scope of his or her
employment. 28 U.S.C. § 2680 (h).
2 Alternatively, accepting the plaintiff's
allegations as true, plaintiff's complaint fails to state a
claim upon which relief can be granted,
In further support of its motion, the United
States attaches hereto and INCKP PA OA herein by
reference its Memorandum of Law
WHEREFORE, the United Sijqiea prays (hia court
enter an order dismissing plainti//', eamplaint or the
grounds set forth herein.
Respectfully submitted,
REBECCA A. BETTS
United States Attorney
By: /S/ Stephen M. Ho,
STEPHEN M. HOR}
Assistant United Sta tog Attorney
: /S/ Kelly R. Curry
KELLY CURRY a
Assistant United Styima AtiuPiey
300 Virginia Street, haat
Charleston, West V \yjiiiid #94011
(304) 345-2200
App. 26
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SARA ELIZABETH LILLY,
Plaintiff,
v, Civil Action No, 2:00-1006
Honorable Joseph Robert Goodwin
hth UNITED STATES OF AMERICA,
Delencdarnt
AFFIDAVIT OF SARA ELIZABETH LILLY
Sara Elizabeth Lilly, after being duly swort,
deposes and says as follows,
1, That I am the plaintiff in the above styled
lawsuit.
2. That prior to December 30, 1997, I had
dropped out of high school. I realized that I needed to
get an education and decided one of the best ways for
me to do this was by joining the Army to get my GED
and a college degree. In this regard, I contacted the
United States Army Recruiting Office located in South
Charleston, West Virginia, at River Walk Mall and
Spoke with Sergeant Mark Clifford at this offiee BA
seVeral Geedsioh HAH Hie HOHE before Beearber WW,
juu?
4 That when | dealt With Sergeant Mark
Cliffeard, | adviaed hin | waa 1? yeare at Aue, WAR A
High seheal dvap aut and the peasan | wanted te jain
He Army Santen HAH ehAuE the entive time | dealt
with Sgt, Cliffard, | was 1? years af age,
App. 27
4, That before December 30, 1997, Sergeant
Mark Clifford came to my home where I lived with my
mother, Pamela Lilly, to administer a test and to also
make arrangements for me to take the GED test on
December 30, 1997,
S, That on December 30, 1997, Sgt, Clifford
drove a United States Government vehicle to pick me
up and take me to the Garnet Career Center where he
tald me the teat would be given, Further, throughout
the vemaincder of the time | waa with Sgt, Clifford on
(hia day he crave (hia same government vehicle and to
iy knowledge and belief he continued to Uae (hie same
veliele while | waa with hin on Deeenber 41, 1997,
6 That when Sgt, Clifford pieked me up te
take me to the Garnet Career Center he was wearing
elothing whieh had “ARMY” written on it,
7, That when Sgt. Clifford drove me to the
Garnet Career Center, I learned that the Garnet Career
Center was closed. Sergeant Mark Clifford thereafter
took me to lunch, a movie, and the Kanawha Mall, and
following the movie, Sergeant Clifford took me to a
restaurant known as Griff’s in South Charleston, West
Virginia, which is in the same shopping mall where the
United States Army Recruiting office is located where
Sergeant Mark Clifford worked.
8, That whe we artived at Griff’s, there
were several other persons preset and were dressed
ii AMHY UAIORe Whe apparently knew Sergeant
Clifford and | Believe Hay have even Wwerked ih the
adie POCFHIHA BFfiee WIE Hi Purther, While we
were al Gllfe ta Ay Rewled@e, HiheriaHan, aid
ny Heel Hf fab all @f Hiese persand renalied
eve.
App. 28
9, That while we were at Griff's, Set.
Clifford purchased numerous alcoholic drinks for
himself and for me, which drinks I consumed, and
caused me to get drunk, vomit on myself, and pass out.
10, That to my knowledge, information, and
belief, after | passed out, Sgt, Clifford took me to the
United States vehicle he was driving and drove to a
motel, while | was passed out and otherwise
incapacitated by my aleoholie intoxication, and where
Ne had sex with me,
11, That 1 believe the United States of
America and the Untied States Army, by allowing
Sergeant Mark Clifford to de those things as Way be
Necessary f08 eneourage Underage potential Aviny
recruits feed under 18 years of age) te join the Untied
States Army, including encouraging me to join the
Army, assumed the responsibility for our eare, welfare,
safety, and protection throughout the entire time we
were with any government or Army personnel,
including the time I was with Sgt. Clifford, from the
time he picked me up on December 30, 1997,
Further, your Affiant saieth not.
Dated this 15 day of January, 2001,
£S/Sara Elizabeth Lilly
SARA ELIZABETH LILLY
App, 29
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, To-Wit:
This day _ personally appeared SARA
ELIZABETH LILLY, who after being first duly sworn
according to law, says that she is the person named in
the foregoing “AFFIDAVIT” and that the facts and
allegations are true, except insofar as they are therein
stated to be upon information, and insofar as they are
therein stated to be upon information, she believes
them to be true.
/S/Sara Elizabeth Lilly
SARA ELIZABETH LILLY
Taken, subscribed, and sworn to before me this
15 day of January, 2001.
- My commission expires: September 16, 2008
[SEAL] [S/ Tiffany L. Slack
' NOTARY PUBLIC
App. 30
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SARA ELIZABETH LILLY,
Plaintiff,
Vv. Civil Action No. 2:00-1006
Honorable Joseph Robert Goodwin
THE UNITED STATES OF AMERICA,
Defendant.
AFFIDAVIT OF PAMELA LILLY
Pamela Lilly, after being duly sworn, deposes
and says as follows:
1. I am the mother of Sara Elizabeth Lilly,
plaintiff in the above styled case.
2. That before December 30, 1997, Sara, had
dropped out of high school and realized she needed to
get an education. She decided the best way for her to
do this was by joining the Army. In this regard, before
December 30, 1997, she had contacted The United
States Army Recruiting Office in South Charleston,
West Virginia, located at River Walk, and spoke with a
person at this office on several occasion about joining
the Army.
3. That at all times my daughter, Sara, dealt
with the United States Army Recruiter, she was 17
years of age.
4. That before December 31, 1997, Sergeant
Mark Clifford had come to my home where Sara lived
with me to administer a test to her. Further, he also
App. 31
made arrangements for Sara to take her GED test at the
Garnet Career Center on December 30, 1997. He also
made arrangements to pick Sara up and take her to the
Garnet Center to take the test.
5. That on December 30, 1997, Sgt. Clifford
picked Sara up and took her to the Garnet Career
Center. Further, when Sgt. Clifford picked Sara up, he
was driving a vehicle that had been issued to him by
the United States Government.
6. That the United States of America, by
allowing Sergeant Mark Clifford to do those things as
may be necessary to encourage and assist my daughter,
Sara, who was under the age of 18, to join the Untied
States Army, and in particular by allowing Sgt. Clifford
to pick Sara up and take her to the Garnet Career
Center to take her GED, the United States of America
and Sgt. Clifford assumed the responsibility for Sara’s
welfare and safety while she was in Sgt. Clifford’s care
and custody, since she was under the age of 18 when
he did this.
Further, your Affiant saieth not.
Dated this 15 day of January, 2001.
/S/ Pamela Lill
PAMELA LILLY
App. 32
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, To-Wit: -
This day personally appeared PAMELA LILLY,
who after being first duly sworn according to law, says
that she is the person named in the foregoing
“AFFIDAVIT” and that the facts and allegations are
true, except insofar as they are therein stated to be
upon information, and insofar as they are therein
stated to be upon information she believes them to be
true.
/S/ Pamela Lilly
PAMELA LILLY
Taken, subscribed, and sworn to before me this
15 day of January, 2001.
My commission expires: September 16, 2008
[SEAL] /S/ Tiffany L. Slack
NOTARY PUBLIC
App. 33
Ee
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
SARA ELIZABETH LILLY
Plaintiff,
Vv. Civil Action No. 2:00106
Honorable Joseph Robert Goodwin
THE UNITED STATES OF AMERICA,
Defendant.
AFFIDAVIT OF RANDY WEST
RANDY WEST, after being duly sworn, deposes
and says as follows:
a I am a retired deputy from the Kanawha
County Sheriff's Department, and when I was last
employed by the Sheriff's Department, I was a
Detachment Commander and Shift Supervisor.
2. That during the course of my
employment with the Sheriff's Department, I was
assigned to investigate an alleged sexual assault of a
female, Sara Elizabeth Lilly, by SFC. Mark Clifford, a
United States Army Recruiter, which occurred in
Kanawha County in late December, 1997. That during
the course of my investigation, I took numerous
statements and completed a report concerning this
alleged assault, which resulted in the indictment of
SFC. Mark Clifford by the Kanawha County
Prosecuting Attorney’s office for sexual assault of Sara
Elizabeth Lilly.
App. 34
3. That attached hereto as Exhibit A, are
true and accurate copies of portions of the official
Kanawha County Sheriff’s Department Investigative
Report done by me regarding the alleged sexual assault
of Sara Elizabeth Lilly by SFC. Mark Clifford, including
statements taken by me of prospective witnesses who
may have had some knowledge concerning events
leading up to, or after the alleged assault of Sara
Elizabeth Lilly, which are a part of the official records
and investigative file of the Kanawha County Sheriff's
Department regarding this alleged assault, which
would have been supplied to the Kanawha County
Prosecuting Attorney’s office to aid its attorneys in the
prosecution of SFC. Mark Clifford.
Further, your Affiant saith not.
Dated this 19 day of January, 2001.
/S/ Randy West
RANDY WEST
App. 35
ae eee
STATE OF WEST VIRGINIA,
COUNTY OF Kanawha, To-Wit:
This day personally appeared RANDY WEST,
who after being first duly sworn according to law, says
that he is the person named in the foregoing
“AFFIDAVIT” and that the facts and allegations are
true, except insofar as they are therein stated to be
upon information, and insofar as they are therein
stated to be upon information he believe them to be
true.
/S/_ Randy West
RANDY WEST
Taken, subscribed, and sworn to before me this
19 day of January, 2001.
My commission expires: September 16, 2008
[SEAL] /S/ Tiffany L. Slack
NOTARY PUBLIC
App. 36
Kanawha County Sheriff’s Department
Law Enforcement Division
Report of Investigation
Headquarters File Number: CI-8391
Date of Report: March 3, 1998
Complaint Received by: Cpl. D.A. Brick
Investigation Assigned by: Lt.J. W. Johnson (Initialed)
Report Made by: Cpl. R.L. West
Status of Investigation: Complete
Initial or Supplement: Initial
Subject of Investigation: Second Degree Sexual
Assault In Violation of:
Chapter 61, Article 8b,
Section 4 of the W. Va.
State Code
ACCUSED:
Clifford, Mark Allen, 35 YOA
White American Male
Address: 2380 Savory Drive
Charleston, West Virginia 25312
Telephone Number: (304) 744-0548
Date of Birth: 03/23/62
Social Security Number: 150-68-2125
Criminal! History: No criminal record.
SUSPECTS:
None other than the accused.
App. 37
EEE EEE
DATE OF CRIME:
Tuesday, December 30, 1997, in the evening hours.
PLACE OF CRIME:
Kanawha County. 48 States Motel, Room #3, 6206
MacCorkle Avenue, St Albans, West Virginia 25177.
DISCOVERED BY:
The victim, Sara E. Lilly.
WEATHER CONDITION:
N/A
VICTIM :
Lilly, Sara E., 17 YOA
White American Female
Address: Rte. 4 Box 227
St. Albans, West Virginia 25177
Telephone Number: (304) 727-3419
Criminal History: No criminal record.
App. 38
f
b>
A
1s
(
a
Be
a
ia
s¥
Ro
a
bee
aes”
r
MOTIVE:
Sexual gratification.
MODE OF OPERATION:
The accused took the victim to Griff’s Pub located in
Riverwalk Mall in South Charleston and supplied her
with various forms of alcoholic beverages. When she
became extremely intoxicated he transported her to the
place of the crime. He undressed her and took a
shower with her. He then took her to bed and engaged
in sexual intercourse with her.
PROPERTY STOLEN: _
N/A.
PROPERTY RECOVERED:
N/A.
LIST OF EXHIBITS:
1) Sexual assault kit from Women's &
Children's Hospital
2) Victim's clothing
3) Clothing provided to victim by the
accused after the assault
4) Registration card from 48 States Motel in
the accuser's name an driver's License number
App. 39
ACTION TAKEN: :
On Wednesday, December 31, | 997 at approximately
1346 hours, Corporal D.A. Brick was dispatched to
Women & Children's Hospital to respond in reference
to a sexual assault complaint. He arrived at
approximately 1410 hours, and met with the victim,
Sara E. Liily, age 17. She indicated to Corporal Brick
that approximately two weeks ago, she met an Army
Sergeant, Sergeant First Class, Mark Clifford, and that
she was anticipating enlisting in the United States
Army. She stated that on Tuesday, December 30, her
mother took her to the St. Albans library, where she
met with Sergeant Clifford and he was to take her for
her GED, she advised Corporal Brick that he took her
to a location in the Charleston area and determined
that this location was closed and was not giving the
GED’s on this day and that he subsequently took her to
lunch at an Oriental] restaurant in the Cross Lanes area.
She stated that Sergeant Clifford then suggested that
they go see a movie, and they went to the Kanawha
Cinemas and saw Scream 2. She stated that she had
been upset about a friend of hers having to move out of
her house, and that Sergeant Clifford knew this and
that Sergeant Clifford told her she looked like she
needed a drink and he took her to Griff’s, which is a
restaurant pub in the Riverwalk Plaza in South
Charleston. Where he bought her a screwdriver,
another screwdriver, which is a mixed drink, a shot of
whiskey and various other drinks. She stated that she
became extremely intoxicated, became ill and threw
up. She stated that Sergeant Clifford then took her to
the 48 States Motel In St. Albans. She barely
remembers what happened. She remembers bits and
App. 40
pieces. She took a shower, Sergeant Clifford gave her
the shower, and washed her off and then took her to
bed. She states they had sexual relations but she
refused to go into detail with Corporal Brick. She
stated that the following morning at approximately
between 0630 and 0730, she remembers taking another
shower, that Sergeant Clifford took her to her
residence, but that they discovered that her mother’s
car was there and that he then took her to a friend’s
house and in Corporal Brick’s report, she is identified
only as Angie, and that Sergeant Clifford
recommended, and suggested that she tell her mother
that she spent the night at Angie's. Corporal Brick
obtained a sexual assault investigation kit at the
hospital and submitted it to the evidence section of the
Kanawha County Sheriff's Department, Headquarters.
On January 2, 1998 at 0840 hours, I recei\ ed the
sexual assault examination kit from the lockers placed
it in the evidence room, and attempted to call the Army
Commander for the local area to advise them there was
a criminal investigation going on with military
personnel, unable to locate anyone.
On January 5, 1998, I called the victim’s mother
Pamela Lilly at home and advised her that we were
initiating an investigation, and that I had been assigned
to the case. I made arrangements with Mrs. Lilly to
bring her daughter in at 0900 hours, on January 6, 1998.
On this same date, January 5, I received a phone
call from Captain Beth Botti, Company Commander of
the St. Albans Army Reserve Recruiting area. She
stated that she had received information that one of her
recruiters, Sergeant Mark Clifford was the subject of
investigation. She advised that he was a 32 year old,
white male, holds the rank of E-7 Sergeant First Class in
App. 41
cea aeaareras-eamraeearremaeaea teenie |
the Army. She stated that he is a special forces soldier,
married, and a bit quirky. She stated that she was told
by two other Army recruiters that they saw him
drinking with the female in Griff’s on the evening of the
crime, and she stated that he was missing for some time.
When I asked Captain Botti what she meant by missing,
she stated that on that evening of the crime, the victim’s
mother started calling the Army wanting to know
where her daughter was, and the recruiter’s wife started
calling the Army advising she wanted to know where
her husband was. She stated that the First Sergeant in
charge of the recruiters subsequently brought Sergeant
First Class Clifford in and talked with him, and he
indicated that he took the girl to a friend’ house and that
he had spent the night at a friend’s house by the name of
Mark March. At that time however, the First Sergeant
was unaware of the sexual assault allegations. Captain
Botti has agreed to give copies of statements from the
Sergeants that she took, and agreed to allow me to
interview the First Sergeant upon his return back to the
West Virginia area. He is currently on assignment in
Kentucky, temporarily.
On the morning of Tuesday, January 6, 1998 at
approximately 0820 hours, Captain Botti called me
back at Headquarters indicated that she had talked to
the JAG, Military affairs office, indicated that she was
instructed to cooperate 100% with the local police in
this matter, and that she was standing by to assist us in
any way. I requested at that time copies of the
statements and agreed to pick them up at a later time
on this date.
At approximately 0900 hours on January 6, the
victim and her mother, Pam Lilly came to the office.
After talking with them briefly, I separated the two. I
App. 42
obtained a statement from Sara Lilly. She indicated
that she has known the Recruiting Sergeant for
approximately 2- 2 ¥2 weeks. She said that she called
the recruiting office to initially enlist in the United
States Army Reserve and asked for a female recruiter
that a friend of hers had used, and was told that she
was out of town, but Sergeant Clifford, the person she
was speaking to, volunteered to come down and talk
with her. She indicated that Sergeant Clifford arrived
and convinced her to join the regular Army. She states
that on the afternoon of the crime, at approximately
1300 hours, she met him at the St. Albans library, and
as stated earlier in this portion of the report went to the
Garnet School to get her GED test, and determined
they were closed, then went to lunch, and went to the
movie, Scream 2, in Kanawha City, and then went to
Griff’s, where he purchased several drinks. She
became intoxicated. She stated she remembers two
other Army Recruiting Sergeants being present at
Griff’s and talking with Sergeant Clifford and then
leaving. She stated that she got intoxicated and threw
up in the restaurant. He took her to the white Jeep
Cherokee Army vehicle. She threw up again in that
vehicle, and he subsequently took her to the 48 States
Motel, where he had sexual relations with her. She
stated that the sexual relations included him placing
his fingers in her vagina, and getting on top of her, in
the missionary position and having intercourse with
her for what she described as a lengthy period of time.
She states that she awoke the next morning, took
another shower and he took her to her mother’s house.
Upon arrival, they discovered the mother’s car there.
He took her then to her friend Angie Vanatter’s house
and told her to tell her mother that she spent the night
App. 43
there. She further states that she advised Angie
Vanatter, and her boyfriend Casey Jones what had
happened the night before. After taking a statement
from her, I took two photographs of her for the
purpose of identification at Griff’s and then took a
statement from her mother, Pamela Lilly.
Pam Lilly states that she also remembers taking
her daughter to the St. Albans library on the day of the
crime. She became concerned that evening when she
did not come home and called Sergeant Clifford the
following morning. Sergeant Clifford told her that she
had met with her friend Angie at the movies in
Kanawha City, and had went home and spent the night
with her. She states that a few days after this incident,
Sergeant Clifford called her and she confronted him
about sexually assaulting her daughter and he denied
the allegations. As Lilly was advised to go to Women &
Children’s Hospital, and Dr. Hayes’ office in South
Charleston, where they advised that they took her to
initially, and get copies of the medical records to turn
over to me. Also during this interview the victim
brought me the clothes that she was wearing at the time
of the assault. The clothes were placed in evidence and
will be transferred at a later date to the C.I.B. lab.
At approximately 1100 hours on this same date,
I went to the U. S. Army’s Company Commander's
office, at 142 MacCorkle Avenue, St. Albans, second
floor. Spoke with Captain Beth Botti. She provided me
with copies of written statements from two of the
Army sergeants that saw Sergeant Clifford in Griff’s
lounge with an unidentified female the night of the
crime. She also indicated that she would set up
interviews with me for statements to be obtained from
the Sergeant at a later date. She stated that Sergeant
App. 44
Clifford had been in the military for several years,
approximately 13, and that she has had behavioral
problems with him in the past and she described him
again as being very quirky. She indicated that the
Army wanted to cooperate fully in the investigation,
and that if I would call her, she would make the
arrangements for interviews with any one that we
wished to interview, specifically Sergeant Clifford
himself. She also advised me that the Military may be
eventually launching their own criminal investigation
into this matter, but at this time they were not.
Approximately 1315 hours this same date, I
went to the 48 States Motel, talked to the clerk, and
obtained a copy of the registration card indicating that
Mark Clifford checked in the hotel room on the date in
question, December 30, 1997, paid $23.00 for a room,
and checked in at approximately 11:00PM. Talked to
the clerk that checked him in named Faith Schaeffer.
She does not recall or remember any details about him.
She did indicate however, that the records indicate that
he spent the entire night there, leaving sometime the
next morning, which would be consistent with the
statement given by the victim.
At the instruction of the motel clerk, I went to
9620 MacCorkle Avenue in South Charleston, met with
Mike Shaeffer who is the manager of the motel. He was
at this address working on a house. He indicated that
he recalls the suspect coming to the motel. He can not
describe what he looks like, but does remember that
they parked out in front of room #3, was a white Jeep
Cherokee, as described by the victim. Further advised
that he remembers the vehicle was there all night and
that they left sometime the next morning. Which is
also consistent with the victim’s statement.
App. 45
After leaving the 48 States Motel, I went to
Griff’s, which is a pub in the Riverwalk Plaza at South
Charleston. Upon arrival there, I met the owner's
boyfriend, who’s name is Kevin Farrell. Kevin was
present on the night of the crime at Griff’s. He knows
the suspect, Sergeant First Class Clifford, and he also
remembers him being in there with a younger looking
girl. When showed a photograph of the victim, he was
able to identify her as being the girl that was in the bar.
He stated that what he remembers best, and he showed
me the table they were sitting at, which was close to the
bar, and says that she apparently became so intoxicated
that she laid her head on the table and could not walk.
He said that at this time they instructed Mr. Clifford to
get the girl out of the bar, and that they had to pick her
up and carry her outside, but before leaving the bar she
vomited on the table. He stated that she could not
stand on her own, and they took her to the outside
area, and did not see what vehicle that they got into.
He stated that also, they instructed him not to come
back into the bar. That they did not appreciate him
bringing a young woman in there, and Kevin said that
he told Sergeant Clifford that she doesn’t even look old
enough to drink, and that Sergeant Clifford told him
that she was 21 years old. Kevin Farrell agreed to meet
me on Wednesday, January 7, to give a statement at
Headquarters regarding what he observed.
Later this date, I met with Aaron Lilly, brother
of the victim, at the St. Albans Police Department
Detective Bureau. I obtained a statement from him.
He states that on Saturday, January 3, 1998 at
approximately 1130 hours, the suspect called his
residence, where he resides with his mother and the
victim, and wanted to know what was going on.
App. 46
SANT RIES EY YIP TI I KT
ia aE mh FEST PI LO le
aes oh rae eee
Stated that he hadn’t heard from his sister, and Aaron
Lilly, the brother, advised the suspect that it was his
understanding that he had got his sister drunk and
took advantage of her sexually. He stated that Clifford
then started cussing saying this was not true. That he
had two good friends that could account for where he
was that night. The brother did not mention to him
what particular night was in question.
Same date, at approximately 2130 hours, I went
to Griff’s pub in South Charleston, and spoke with Jim
Alderson the bartender. Showed him a picture of the
victim, he states that he remembers the victim being in
the bar that night with the Army recruiter. Due to the
fact that he was extremely busy that night we made an
appointment to go back at 1400 hours the following
day to take a statement from him.
At 10:00 AM on Thursday, January 8, 1998, the
suspect, Mark Clifford, came to the Kanawha County
Sheriff's Department Headquarters. He was
accompanied by Mark March. The suspect was
advised of his Constitutional rights, and he signed the
rights form and agreed to talk orally with: this officer,
but he said he would not give a statement at this time
on the tape recorder. The allegations were outlined as
made in the initial complaint report to the suspect. The
suspect denied these allegations. The suspect said that
he did in fact meet the victim at approximately 1:00PM
on December the 30, 1997, at the St. Albans library.
That he did subsequently take her to Garnet School,
but discovered that the school was closed. He stated
that he did take her to an Oriental Restaurant for lunch
in Cross Lanes, and that he subsequently, at her
recommendation and request, tock her to Kanawha
Cinemas to watch the movie Scream 2. He stated that
App. 47
while at the Kanawha Cinemas watching the movie
Scream 2, she ran in to some friends of hers that he was
unable to identify, and stated that she told him she that
she would just go home with them. He states that’s the
last time he saw her. He stated that later that day, he
met with Mark March, who is a U S Army potential
candidate, and a friend of his, and that they went to
Griff’s in South Charleston, and stood around for about
an hour, had a beer, and then went to Mark’s house
where they spent the rest of the night. I thanked the
suspect for that statement and asked him to step out of
the room while I interviewed Mark March, who he had
brought as an alibi witness.
I then brought Mark March in to the conference
room of the Sheriff's Department Headquarters, and
told him what the case was all about. Explained that it
was a sexual assault inyestigation, and that I knew for
a fact that he had been at the 48 States Motel on this
particular night in question, and had not been at his
residence. Mark March immediately stated that he was
not going to cover for him. He stated that the suspect
told him that he may be in a little of trouble because he
had took a 17 year old candidate for the Army, a
female, into a bar so that he could have a drink, not
her, and that while he was there, she took_a pill, and
became in an incapacitated state. When Mark March
realized that this was a sexual assault investigation, he
said the he was not going to offer an alibi for Sergeant
Clifford. He stated that Sergeant Mark Clifford of the
Army, who he met in a recruiting capacity, had asked
him to come to the Sheriff’s Department headquarters
and essentially lie for him as to an alibi as to where he
was that night. Mark March advised that he did not
know that this was a sexual assault investigation, and
App. 48
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that he did not see Sergeant Clifford on December the
30%, 1997, but he only talked to him once that day on
the phone, and that he didn’t see him again until the
following day, December the 31st, New Year’s Eve. A
recorded statement was taken from Mark March, and
he requested that he be given a ride home, because he
had rode to Headquarters with Sergeant Clifford.
Detective Greg Young of the Sheriff's Department
transported him back to his residence in Pratt.
The suspect, Mark Clifford, was brought back in
the Sheriff's Department Headquarters conference
room, and confronted with the story that was given us
by Mark March. He was also was confronted with the
evidence that two of the Army Sergeants had seen him
in Griff’s Pub with the female, the victim, and that he
had also checked in to the 48 States Motel, at 11:00 PM,
on December the 30, and I showed him a card, the
original registration card, and at this time he requested
that he speak with an attorney and he declined to
answer any further questions. He was arrested, taken
before Magistrate Kathy Demarco, arraigned and
released on $2500.00 property bond. The bond was
posted by Maxwell Crook, a local Charleston bail
bondsman.
I advised Mr. Clifford after fingerprinting and
photographing him, that I had been on the telephone
within the last hour, with Captain Beth Botti, his
Company Commander, and as a direct order, he was to
report to her immediately, he indicated that he would
and as of 1557 hours on this date, he had not reported
in or shown up. At this time, I was advised by the US
Army that they were attempting to locate him to place
him in confinement.
App. 49
On Friday, January the 9, 1998, Sergeant First
Class Adkins and Sergeant First Class Blevins came to
the Kanawha County’ Sheriff's | Department
Headquarters. Sergeant Adkins, full name is Raymond
G. Adkins, whose date of birth is 3/27/62, SSN
384-82-2400. Sergeant Blevins, full name is Charles L.
Blevins, whose date of birth is 5/2/66, SSN 406-11-6366.
Sergeant First Class Adkins is the Station Commander at
the South Charleston Recruiting Station, and Sergeant
First Class Blevins is a tellow Army Recruiter at that
station. Sergeant First Class Adkins said he was at
Griff’s Pub on the evening of December the 30%, 1997
arriving at approximately 8:00 PM and departing at
approximately 8:30 PM. He said that he saw Sergeant
Clifford in there with a young female setting at the table.
He said that he departed and went home, and that he
received a phone call from Sergeant Blevins late that
night, indicating that the young female that was with
Sergeant Clifford had apparently passed out at the table
and had to be carried out of the bar by Sergeant Clifford
and employees of the bar. He also stated that Sergeant
Blevins called him back at approximately 4:00 AM and
that Sergeant Clifford’s wife had called him looking for
Sergeant Clifford. He states further that at
approximately 5:00 AM, Sergeant Clifford’s wife called
him looking for Sergeant Clifford. He states that when
he went to work at approximately 8:15 AM the
following morning that Sergeant Clifford’s wife was in
there and stated that he had not returned home all night
and was looking for him. He stated that Sergeant
Clifford, upon his arrival, was interviewed by himself,
the First Sergeant, and Captain Beth Botti, and he stated
that the woman that he was in the bar with, at Griff’s
drinking, was the wife of a friend of his. They informed
App. 50
Olt PS Ott ads °
Sergeant Clifford that Pam Lilly, mother of Sara Lilly,
had been calling Sergeant Adkins trying to find her
daughter. He stated that he took her home the
preceding day to a friends house, Angie Vanatter, in the
St. Albans area.
Sergeant Blevins states that he was also in the
pub at Griff’s. Arriving about 8:30 PM with Sergeant
Adkins, but he stayed for approximately 2 hours, where
as Sergeant Adkins left. He stated that the owner of the
pub came to his table and asked him if he knew who the
girl was that was with Sergeant Clifford. He stated that
he did not know the girl, and he wanted to know why
she was asking, and the owner advised him that the
young female did not look old enough to be drinking -
and that the young female had apparently passed out
at the table. Sergeant Blevins states that he observed
the owner of the bar, the owner’s boyfriend, and
Sergeant Clifford carrying the girl out of the bar, and
she became ill and started vomiting all over the area of
the bar. Sergeant Blevins said he followed them out on
the parking lot, and he observed Sergeant Clifford
place the girl in a white Jeep Cherokee which is the
United States Army vehicle assigned to Sergeant
Clifford, and attempt to drive away with her. He states
that he stopped Sergeant Clifford and asked him if
everything was okay, and Sergeant Clifford replied,
“yes”, and drove off. He states that he called Sergeant
Adkins, the Station Commander, and told him what
had happened, and that at 4:00 AM. Sergeant
Clifford’s wife started calling him wanting to know
where her husband was. He states that he also called
Sergeant Adkins and advised him of this. He states
that when he came into work at approximately 8:15
AM, the next morning, Sergeant Clifford's wife was
App. 51
there, very angry and agitated, and that he started
receiving phone calls from Pam Lilly, mother of Sara
Lilly, saying that Sergeant Clifford had picked her
daughter up at 1:00 PM, the preceding day, to get her
GED, and had not brought her back. Sergeant Blevins
stated that’s when he started putting it together and
realized that Sergeant Clifford had been in Griff’s Pub
with a 17 year old, underage girl drinking. Sergeant
Blevins was also ordered by Captain Beth Botti,
Company Commander, to supply her with a written
statement, and I have a copy of that also. Sergeant
Blevins indicated to this officer that he realized the
following morning the extent of this problem, and
decided that he would cooperate in the Military and
Police investigation, if it came to that point.
Also on Friday, January the 9%, I received a
phone call from Kenneth Cooper (595-5177). He states
that he has a daughter, Kim Cooper, 18 years of age, that
approximately two months ago was thinking about
enlisting in the United-States Army Reserve. Her
recruiter was Sergeant Mark Clifford. He states that his
daughter was taken to the Cross Lanes area to take the
ASVAB test, and that Sergeant Clifford offered to take
her to a bar to have drinks, and that she declined to do
so. Then tried to get her to allow him to buy beer, so
they could drink beer in the car, she declined to do so.
He states that according to his daughter that Sergeant
Clifford made sexual _advances to her, and that she
pushed him away and that he pulled her hair and
assaulted her physically, but not sexually. I advised Mr.
Cooper that we would like to talk with his daughter for
an interview and a statement. He stated that he would
bring her in on this particular day at approximately 1300
hours.
App. 52
Ms. Cooper arrived at headquarters at
approximately 1250 hours. She was identified as
Kimberly Ann Cooper, age 18, date of birth 3/14/79,
SSN 233-27-0449; P O Box 287, Dawes WV 25054; PS#
995-5177. Ms. Cooper gave a statement but stated that
she wasn’t sure she wanted to press charges. She
stated that she met the recruiter through East
Bank High School. In October of 1997, he took her for
an ASVAB test. She stated that they met at the
Kanawha City Mall, at Burger King. There were
supposed to be some other members of the school that
wanted to join the Army present, but there was not.
She states that he took her to Taco Bell in South
Charleston, offered her something to eat, she declined.
Bought himself a soft drink, sat on the parking lot in
the Army recruiting Jeep, and was going to fill out
some paperwork, asked her if she wanted to go to a
bar later, she said, “no”. Grabbed her by the hair of
the head, jerked her head back, and said “I bet you
like it rough, baby”. She stated “no”, said “take me
home”. He said, “no, are you going to go take the
test”? He then took her to take the test, she completed
the test, and on the way home he started attempting to
touch her breasts, patted her on the buttocks, and
twisted her arm on two different occasions and pulled
her hair again three more times. She states that she
was in tears and very upset, and decided that after she
got home she told her parents part of what had
happened, and decided not to have any more contact.
She states that the Sergeant was very angry with
her after she pushed him away and told her to “get
the fuck out of the Jeep” and drove off squalling his
tires. Ms. Cooper stated that she would think about
this over the weekend and call me back to let me
=~
App. 53
know if she was going to press charges. She did
advise that she would cooperate in the Army
investigation.
On Monday, January 12, 1998 at approximately
1115 hours, I took evidence to the State Police Crime
Serology Lab. This evidence included the sexual
assault examination kit, obtained by Corporal Brick at
Women and Children’s Hospital from the victim, Sara
Lilly. As well as the clothing that Sara Lilly wore prior
to the sexual assault, and the clothing that she wore
subsequent to the sexual assault. This was submitted
to Trooper H. B. Myers, a personal delivery from me.
On Wednesday, January 14%, 1998 at
approximately 1400 hours, I met with First Sergeant
Dean. Who is the First Sergeant of the St. Albans
Recruiting Command Company. First Sergeant Dean
states that on the morning of December 31, 1997 he
questioned Sergeant First Class Clifford as to where he
had been the night before, why his wife had called all
night looking for him, and why the victim’s mother
had been calling all night looking for her. He states
that Sergeant First Class Clifford told him that he took
the applicant home on the evening of the 30% to a
friends house named Angie. That he didn’t know why
his wife had been calling all night looking for him,
because he had told her he was going to be late.
Sergeant First Class Clifford insisted that he did
nothing inappropriate. This statement was obtained
from First Sergeant Dean.
On Friday, January 16%, 1998 I met with Angela
Marie Vanatter, she goes by the name of Angie, at the
St. Albans Police Department. I obtained a statement
from Angie Vanatter. In her statement she states that
~ she did not see or hear from the victim on December
App. 54
the 30%, 1997 as indicated by the accused. She did not
attend the movies at the Kanawha Cinemas, and Sara
Lilly did not come to her house and spend the night.
She says that the next time that she saw Sara Lilly was
approximately 9:00 AM on the morning of the 31st of
December. She stated that Sara Lilly came to her
house, was wearing sweat pants and a sweat shirt,
which was very unusual for her to wear because she
doesn’t dress that way, and that she was clearly upset.
She set in the floor and started holding her head, and
set and told her something terrible had happened.
When Angie Vanatter had questioned her further, Sara
Lilly indicated that she had went to the movies the
night before with her Army Recruiter, and afterwards
he had taken her to a bar in South Charleston, and got
her drunk, provided her with alcohol and she became
intoxicated. She told Angie Vanatter that at some point
in time, Sergeant Clifford, the accused, went to the
restroom and she laid her head on the table and
apparently passed out. The next thing she
remembered, was that she was in the shower, naked,
and was with Sergeant Clifford, who was also naked.
Angie Vanatter states that she talked her into
contacting her mother, her mother came and got her.
She also states that two to three days later, an
unknown man came to her residence and stated that he
was looking for Sara Lilly. Angie asked him who he
was, he declined to answer at that time, and stated that
Sara and her Mom were fighting. Again, Angie
Vanatter asked him who he was, he again he declined
to answer the question, and said, “you know that Sara
Lilly can get in a whole lot of trouble, I need to find
her”. Again, Angie-Vanatter asked him who he was.
He stated Mark Clifford. She said, “Mark Clifford,
fal App. 55
who are you”? Sergeant Clifford stated, ” a friend of
Sara’s”. At that time Angie Vanatter realized that he
must be the Army Recruiter, and she slammed the door
in his face, and he went away.
On Tuesday, January the 20%, 1998 at
approximately 1515 hours, I met with Kevin Farrell and
Jim Alderson. Kevin and Jim are employees at Griff’s
Pub where the accused took the victim to get her
intoxicated. Kevin Farrell, whose girlfriend is the
owner of the pub, stated that he knows Sergeant
Clifford, the accused, from his many visits in the pub,
usually at lunch time. He states that he observed him
in there with the young female. When shown a
photograph of the victim, he indicated that he was able
to recognize her. He stated that he first really noticed
her when she was lying face down on the table
vomiting. He stated that he determined immediately
that she was extremely intoxicated and he approached
the accused and told him to get her out of the pub. He
stated that the accused argued with him briefly and
told him that she was okay, but Mr. Farrell insisted that
they get her out. The accused, according to Mr. Farrell,
suggested that he assist him in carrying her, the victim,
out of the establishment. Mr. Farrell stated that the
victim was so intoxicated at that time that she couldn’t
stand up, didn’t even appear to be conscious. Stated
that she was carried and placed in a white Army Jeep.
Mr. Alderson, who is the bartender, indicated that
Mr. Clifford, the accused, bought the drinks, and
supplied the victim with these drinks. Stated that he also
noticed the victim for the first time when she appeared
to be very intoxicated and stated that he did talk with
her when she first came into the bar, briefly, when he
checked her ID. There is no indication, however, that this
App. 56
:
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eg
ID was checked, and I believe that he may have
fabricated this story just to cover himself, afraid that they
might be in trouble with the ABC Commission for
serving an underage drinker. Mr. Alderson was shown a
picture of the victim and he identified her as the young
lady that was in the club with the accused. He stated
that when he noticed her again, she was severely
intoxicated and passed out at the table and had to be
carried out by Mr. Farrell and Mr. Clifford.
WITNESSES:
| Lilly, Sara
Address: Rte. 4 Box 227
St. Albans, West Virginia 25177
Telephone Number: (304) 727-3419
Date of Birth:3/4/80
Social Security Number: 234-35-2518
Can testify to being the victim of a sexual assault
and can identify the accused and will offer details into
the events of the crime.
Lilly, Pam
Address: Rte. 4 Box 227, St. Albans, West Virginia 25177
om Number: (304) 727-3419 (Home)
(304) 348-4341 (Work)
Date of Birth: 3/4/54
Social Security Number: 234-35-2518
Can testify to taking the victim to meet the
accused and her not coming home until the next day.
She will also testify to the victim reporting the crime to
her.
App. 57
First Sergeant Jeffrey L. Dean, United States Army
Address: 142 MacCorkle Avenue South West
St. Albans, West Virginia 25177
Telephone Number: (304) 727-5673
Date of Birth: 12/19/59
Social Security Number: 525-21-4721
Can testify to interviewing the accused on the
morning after the crime as to his whereabouts and where
he took the victim. He will testify to the fact that the
accused lied about where he was the night of the crime.
Cooper, Kim
Address: P. O. Box 287, Dawes, West Virginia 25054
Telephone Number: (304) 595-5177
Date of Birth: 3/14/79
Social Security Number: 233-27-0449
Can testify to having a previous experience with
the accused. She was a candidate for the Army and the
accused attempted to seduce her into drinking. When
she rejected his advances, he assaulted her by means of
battery.
Sergeant First Class Raymond G. Adkins,
United States Army
Address: 142 MacCorkle Avenue South West,
St. Albans, West Virginia 25177
Telephone Number: (304) 744-6491
Date of Birth: 3/27/62
Social Security Number: 384-82-2400
Can testify to seeing the accused in Griff’s Pub
on 12/30/97 with the victim and to the intoxicated
condition of the victim.
App. 58
Sergeant First Class Charles L. Blevins,
United States Army
Address: 142 MacCorkle Avenue South West
St. Albans, West Virginia 25177
Telephone Number: (304) 744-6491
Date of Birth: 5/2/66
Social Security Number: 406-11-6366
Can testify to seeing the accused in Griff’s Pub
on 12-30-97 with the victim and to the intoxicated
condition of the victim.
James L. Alderson
Address: 1414 West Virginia Avenue
Dunbar, West Virginia 25604
Telephone Number: (304) 768-0129
Date of Birth: 9/29/67
Social Security Number: 232-21-4191
Can testify to observing the victim in the bar
whit the accused and to how incapacitated she was
when they departed from the bar.
Kevin J. Farrell
Address: 204 Powderhorn Road
Charleston, West Virginia 25314
Telephone Number: (304) 435-0744 (Pager)
Date of Birth: 5/25/59 is
Social Security Number: 172-46-5197 |
Can testify to how intoxicated the victim was and
arguing with the accused about having the victim in the
bar. He will also testify to assisting the accused in
carrying her out of the bar and that she was unconscious.
~
App. 59
Angela Marie Vanatter
Address: 500 B Holley Street
St. Albans, West Virginia 25177
Telephone Number: (304) 490-7520 (Boyfriend’s Pager)
Date of Birth: 4/16/80
Social Security Number: 233-21-5486 ~
Can testify to the victim coming to her residence
on 12/31/97 and telling her about the crime and as to
her emotional condition. She can also testify to the
accused coming to her residence approximately three
days later looking for the victim.
Corporal D. A. Brick
Address: Kanawha County Sheriff's Department
St. Albans Detachment
P.O. Box 75087
Charleston, West Virginia 25375
Telephone Number: (304) 357-0175
Can testify to the initial report and conducting
the initial investigation.
Detective, Corporal R. L. West
Address: Kanawha County Sheriff's Department
Criminal Investigative Section
P. O. Box 75087
Charleston, West Virginia 25375
Telephone Number: (304) 357-0175
Can testify to all facts contained and set forth in
~ this report.
App. 60
CONFESSIONS AND STATEMENTS OF THE
ACCUSED:
The accused declined to give a recorded
statement. However, he did offer an oral statement
that directly conflicts with the evidence and other
statements obtained
MILES TRAVELED:
120 Miles traveled.
MAN HOURS SPENT:
60 Man hours spent.
[S/_R.L. West
Detective R. L. West
Criminal Investigative Section
Kanawha County Sheriff’s Department
Copies to: The Sheriff
Prosecuting Attorney
LED Files
blh
03/03/98
App. 61
/ss«779-,, ,, —
DATE: FRIDAY, JANUARY 9, 1998
TIME: 10:47 HOURS
STATEMENT OF
SGT. FIRST CLASS CHARLES L. BLEVINS
THIS IS A STATEMENT OF SGT. FIRST CLASS
CHARLES L. BLEVINS OF THE UNITED STATES
ARMY RECRUITING. DATE OF BIRTH IS 5-2-66.
SOCIAL SECURITY NUMBER IS _ 406-11-6366.
ADDRESS IS #9 RIVERWALK PLAZA, SOUTH
CHARLESTON, KANAWHA COUNTY, WV. PUBLIC
SERVICE 304-744-6491. THIS STATEMENT IS BEING
OBTAINED BY DETECTIVE CORPORAL R. L. WEST
OF THE KANAWHA COUNTY — SHERIFF'S
DEPARTMENT, CRIMINAL INVESTIGATION
SECTION.
Q: Could you state your full name please?
A: Charles Lee Blevins, Jr.
Q: Howold are you Sgt. Blevins?
A: 31 years old.
Q: You're a recruiter and on active duty of the
United States Army is that correct?
A: Yes sir. I’m active reserve recruiter at the time.
Q: How long have you been in the Army?
A: 13 12 years.
Q: You're currently stationed in South Charleston?
A: Yes sir.
App. 62
O -?O FO >
Do you have a fellow recruiter there named
Mark Clifford?
Yes sir.
As you are aware there is a both a criminal and
military investigation being conducted into
activities of Sgt. Clifford?
Yes sir.
On December 30, 1997 in the evening hours it’s
reported by the victim that Sgt. Clifford took her
to Griff’s Pub which is located just a few doors
down from the Army Recruiting office there at
Riverwalk Plaza in South Charleston. He
supplied her with alcohol and she became very
intoxicated and had passed out. It’s my
understanding when talking to Sgt. Adkins that
you and Sgt. Adkins were also in that pub that
night is that correct?
Yes sir.
About what time did you arrive there?
Approximately 8:30.
Approximately what time did you leave?
Approximately 10:30.
If you would just tell me in your own words
what you saw from the time that you got there
and the time you left?
When I walked in I noticed Sgt. Clifford sitting to
the right of the bar of a small table. There was a
female with them. I didn’t stop at the table he
motioned at Sgt. Adkins and Sgt. White were in
the back and I kept walking and went on back
App. 63
there. I asked them who that was with him and
they didn’t know. We thought it was just
somebody that came up to talk to him or
whatever and didn’t think to much more about it.
Sgt. Adkins left and I was still standing at the
back of the bar neat the restroom watching the
karoke, that’s why we was there that night and
wasn’t paying to much to Sgt. Clifford and didn’t
even know if they were still there for sure, it was
hard to see because it was pretty crowded. Then
one of the owners of the bar came to my table and
asked if I was with the young lady at the table
over there because she was really drunk and I
stood up to see who it was and I noticed that
that’s where I had seen Sgt. Clifford and the
young lady that was sitting with him sitting. But
Set. Clifford was not there at the time. I said, “I’m
not sure” because I couldn’t see her you know for
sure, if it was the same person that I had seen or
what she looked like or anything because Sgt.
Clifford wasn’t there. About that time Sgt.
Clifford walked passed me, I guess he had went
to the restroom and went on up to the table and I
hadn't seen him go in there or anything. Then he
went over to and started helping the girl up from
the table and everything and by that time Kevin
the owner of the bar had already went over there
too and was helping him get her to the door. So
then I knew that that was the same people or the
same one that he was with when he came in. By
the time I got to the door to see what was going
on one of the waitresses was helping him carry
her out to the parking lot or walk her out. |
wasn’t paying much attention cause I was going
App. 64
to go over to the recruiting station and I hollered
at him as he was walking out to see if he wanted
to bring her over to the station to sit down on the
couch and see if she’s okay. About that same time
Myrna the owner of the bar came outside and she
was very upset and she was trying to ask me
what was going on so I walked back to her and I
said, “I don’t know I don’t know who the girl is, I
don’t know what happened or anything like
that”. She was concerned about the girl and
asked me if I would go out and see if she was
okay. So I started walking out to the parking lot
and Sgt. Clifford was pulling out and what I
assumed was probably a government Jeep, it was
a white Jeep I didn’t take a look at the tags or
anything so I’m not 100% sure that it was. That's
what I pretty much figured I guess. He was
pulling out so I had to run out there to catch up
the vehicle and I said, “Hey is everything alright,
what's going on”? and he said something like,
“Yeah everything is okay” or whatever and took
off out of the parking lot and I went back into the
bar and pretty much didn’t know what had
happened and the people in the bar was asking
me what was going on and I didn’t know so |
stayed there for just a little bit longer and went on
home and called Sgt. Adkins and told him what
had happened and went on to sleep. About 4:00
in the morning Set. Clifford’s wife, Bea called me.
She was kind of upset and wandering where Sgt.
Clifford was. I didn’t tell her that I had seen him
but I also just told her that I didn’t know where
he was at because I didn’t know what to say.
App. 65
> O
You didn’t lie to her you just didn’t tell
everything you knew about it?
Right. Yes sir. At that time I knew that
something wasn’t right because here she’s
wandering where he is at and it’s 4:00 in the
morning. So I knew then that he apparently
wasn’t with a friend of the family that night or
you know...so kind of wandered the rest of the
night that was going on. Got a little early and
went on into work. Go there and around 8:00 I
think Mrs. Pam Lilly called me, called the office
looking for Sgt. Clifford and I told her that he
wasn’t there and that could I take a message.
She told me, “Well he came to pick my
daughter yesterday afternoon to take her to the
library to get her GED”. She hasn't seen or
heard from her since. At that point I start
thinking, you know hopefully this is not the
same gir! that was in there last night.
Did you start to think that it probably was?
Yeah well it’s definitely occurred to me because
his wife is calling me wandering where he is at
and he was with a girl last night that at that bar
and then this applicant’s mother is calling in.
But at the same time it seemed to hard to
believe that that would be the case. So anyway
his wife calls again pretty much right after that
and she still hadn’t heard from him. Which I
was hoping by that time he had shown up at
home or something. She said, asked me again
if | had seen him or if I knew where he was at
or if he had been in the office and I said, “No”.
I said, “He’s not home yet”? and she said,
App. 66
water meee nmermenn meee ener
4
ae
tS
4
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es
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sm
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Pr OP 0
“No” and she got very upset and you know
saying that she was coming down there or
whatever and she did come down to the office
and made a couple of calls while she was there,
I’m not sure who she talked to but she had
calmed down by that time and apologized to
me for going off on the phone which I told her
that was alright. We was still looking for him
and hadn't heard from him. The government
Jeep, Sgt. Adkins had Sgt. White go check to see
if it was in the area and it was gone also.
This would have been the same govern-ment
Jeep that you seen him leaving with the girl?
That same, well it turned out to be yes sir.
How many of those Jeeps do you have assigned
there?
One. Just the one.
Sgt. Clifford usually drive it or do you all drive
it?
Yes he’s the primary operator of the vehicle.
Still hadn’t heard from him. I informed Sgt.
Adkins when he got in around 9:00 that the
lady called looking for her daughter. So he
called her and was asking her what was going
on and he would try to find out what was
happening. He had made some phone calls at
that time since we had an applicant’s mother
looking for her daughter, he had to inform the
chain of command what was going on. So he
called the Commander and the First Sergeant I
believe and informed them what was going on
and [| think they informed Battalion
App. 67
ae
Headquarters that there was an incident and
don’t know really what was going on right now
but we're trying to find out. Eventually I think
that’s all that happened up until Sgt. Clifford
called in from somewhere and I didn’t talk to
him. He apparently acted like you know,
what's wrong, what's going on? But we hadn't
seen him all day and he hadn't called and
talked to nobody and his wife hadn’t heard
from him and he was asking him where he was
and all of that, Sgt. Adkins was. Told him that
he needed to get into the office. When he got
into the office the Commander and First
Sergeant had already came down there and was
waiting and he went, they took him to the back
room and was asking him where he had been,
what went on, made him write a statement |
think or the First Sergeant wrote down what his
story was or whatever. He was claiming that,
from what I understand that they was isolated
incidents that he had dropped off the young
lady at the, after they had found out that the
test wasn’t happening or something that he
dropped her off at a girlfriends house and after
that he went to Griff’s and he was there with a
personally friend of his, I believe a male friend
and a female friend. But I don’t know exactly
what....
Did you ever see a male friend in there?
No sir.
App. 68
Q: Was there a male friend in the Jeep when he left
with the female?
A: Not that I saw sir. Anyway they took his story
his down and Sgt. Adkins continued to call and
find out if the mother had located the daughter
because at that time we didn’t know really what
was going on and the grandmother told him that
she had went to look for her. At a friend’s house.
Well we never heard back from the mother or
anybody. Then it was the, I think the four day
weekend came and I guess all of us was hoping
that this was just coincidental and that
everything was just fine. But when we got back
into work Monday we started hearing everything
and found out that that actually was the girl and
that’s about it I guess. a
Q: Is everything you've told me been the truth Sgt.
Blevins?
A: Yes sir.
Q: Would you testify to that in court if asked to do
so?
A: Yes sir.
STATEMENT OF CHARLES BLEVINS
STATEMENT CONCLUDED AT 10:57 HOURS.
/s/
SGT. FIRST CLASS CHARLES BLEVINS
WITNESS:
Imw
1-13-98
App. 69
DATE: THURSDAY, JANUARY 9, 1998
TIME: APPROXIMATELY 10:27-HOURS
STATEMENT OF MARK MARCH
THE FOLLOWING IS A RECORDED STATEMENT OF
MARK A. MARCH. AGE 30, DATE OF BIRTH IS 9-7-
67. SOCIAL SECURITY NUMBER IS 235-21-6367.
ADDRESS IS P.O. BOX 216, PRATT, WV 25162.
PUBLIC SERVICE IS 304-442-4950. THIS STATEMENT
IS BEING OBTAINED BY DETECTIVE CPL. R. L.
WEST OF THE KANAWHA COUNTY SHERIFF'S
DEPARTMENT, CRIMINAL INVESTIGATION
SECTION. :
Q: Could you state your full name please?
A: Mark Anthony March.
Q: How old are you Mark? :
A: 30
Sgt. 1st Class Army Recruiter?
Q: Mark, do you know a guy named Mark Clifford,
A Yes sir.
Q: How is that you know him by your desire to go
into the Army?
A: Yes sir.
Q: How long have you known him?
A: A couple of months, several months | guess.
Somewhere along that lines.
App. 70
QO > 0
You don’t know a female named Sarah Lilly do
you?
No.
She and talking- a few minutes prior to this
statement she is a young lady. 17 years old from
St. Albans and was planning on joining the Army
and she’s made allegations that on December 30,
1997 Sgt. Clifford picker her up about 1:00 p.m.
and took her to get a GED test, the school was
closed and then took her to lunch and then took
her to the movies, then took her to a bar and got
her intoxicated and then took her to the 48 States
Motel and the evidence would indicate that they
arrived there at approximately 11:00 p.m. and
that he had sex with her during the night and
then took her home or took her to a friends house
the following morning. Now when talking with
Sgt. Clifford yesterday he indicated to me that his
alibi for that night was that he had spent the
night with you arriving there sometime in the
evening hours, is that true?
No.
Had he ever contacted you and asked you to be
an alibi witness for him?
Yes.
Just tell me in your own words you're an ex-
police officer, you know what I’m trying to get
at here. So just tell me in your own words here
what this is all about?
Basically Sgt. Clifford contacted me I believe it
was on the 31%t or maybe it was, yeah I believe it
App. 71
ee
a eee
was the 31*, roughly that he had a problem that
he had a female recruit that got drunk and
aa passed out on him and he didn’t know what to
do with her. Puked all over him and he
panicked, he didn’t know what to do. He took
her and dumped her off in a motel and left her
there and tried to clean her up and clean the
velucle up and you know basically that was it,
trying to....
He said that he took her to a motel?
Yes. To a motel. Just put her there that night so
she could sober up and so forth and clean her up
before he took her home because he knew that
they was supposedly having some family
problems. That was basically it, | was supposed
to say, if anybody asked where was he, he was
with me. Then it snowballed, it got bigger. ..the
mother calls and says that there’s a problem that
he got her drunk and took advantage of her and
he told me that that never happened, you know
that it just didn’t happen, I don’t know why
she’s after me. I really don’t understand this
and so forth. I said, “Well you know...”, I took
him for his word. You know situations happen
and you know, he told me that if anybody asked
just to say that “I was with you that night”.
> O
Q: When did he call and ask you to come in here
with him this morning?
A: It was yesterday. Yesterday morning.
App. 72
ee
>
20
> 0
2 O
an,
Now you haven't lied to me in anyway
obviously...was your purpose to come here this
morning then just to assess the situation and get
a feel for it yourself?
Exactly. Exactly.
You're getting his version of what happened
and you've asked me several questions prior to
this so obviously your pretty curious about what
really happened?
Yeah. You know I only got one side of the
version I don’t know the little girl, | don’t
know...
He didn’t go into a lot of detail though then he
asked you to account for his time on that night?
Yeah just basically that.
How long have you been a police officer Mark?
Oh I guess going on about 11 years.
You're not working as a policernan actively right
now?
No sir.
You're preparing to go into the Army?
Processed to go into the Army any day
So that’s the only way that you know him is
through the Military?
Through the Military. We're casual friends.
We're friends outside the Military environment.
App. 73
20
2 O
2 O
> O
But you met him through the Military?
Through the Military. That's the first time I've
met him. |
Did you feel intimidated at any time or at least
did you feel that your opportunity to go into the
Military might be somewhat stopped if you did
not assist him in someway?
Somewhat but not a whole lot.
Not anything he said?
No he didn’t say, “You know if you don’t help
me out your not going to be able to go into the
Military” nor nothing like that. I just took him
at his word that you know that the girl was a
problem child and she went out and got drunk
and he didn’t know what to do. Just to try to
help him out. Like you said I didn’t really get
the whole...the whole jest was not coming
around. There’s a piece of the pie missing.
Did you see him at all on December 30?
No I talked to him on December 30. I talked to
him on the phone sometime that day. He was at
the office.
About what, about your career goals?
Yeah, just, actually we was supposed to go
hunting me and him and he couldn't give me a
date of when he could go and that was it. That's
the last time that I talked to him until I think the
next day. I believe it was the next day.
App. 74
Q: Now that we've talked about this case and I’ve
shown you some of the evidence that’s
developed do you believe his story at this time?
A: No. It would be kind of hard to believe.
Q: Is there anything that you need to add to this
statement that perhaps I neglected to ask you
Mark?
A: No not really.
: Q: Anything that you would like to delete or take
: away from the statement?
No. That's about the best I can say. You know
that’s what basically happened, my part of it
anyway.
‘diesen, Pear tigate AONE a bth des at aN Mallee Die + vs
Has everything you’ ve told me been the truth?
Yes.
you to do so?
Q
A
~ Q: Would you testify to this in court if we asked
A Yes.
STATEMENT OF MARK MARCH
| STATEMENT CONCLUDED AT 10:32 HOURS.
MARK MARCH
App. 75
DATE: TUESDAY, JANUARY 6, 1998
TIME: APPROXIMATELY 15:37 HOURS
STATEMENT OF AARON R. LILLY
THE FOLLOWING IS A RECORDED STATEMENT OF
AARON R. LILLY, AGE 19. DATE OF BIRTH IS 4-30-
78. SOCIAL SECURITY NUMBER IS 234-35-1799.
RESIDE AT RT. 4 BOX 227 ST. ALBANS, KANAWHA
COUNTY, WV 25177. PUBLIC SERVICE IS 304-727-
3419. THIS STATEMENT IS BEING OBTAINED BY
DETECTIVE CORPORAL R. L. WEST OF THE
KANAWHA COUNTY SHERIFF’S DEPARTMENT,
CRIMINAL INVESTIGATION SECTION.
Q: Would you state your full name please?
A Aaron Ray Lilly.
Q: How old are you Aaron?
A: 19
Q: You are the brother of Sara Lilly?
A: _ That's right.
Q: You're aware that there is an investigation being
conducted against Sgt. 1st Class Mark Clifford of
the U.S. Army Recruiting Center?
Yes.
Q: And that the allegations are that he sexually
abused or sexually assaulted your sister?
A: Yes.
App. 76 7
POT een, fe LE er ey
This would have occurred on the evening of
December 30, 1997 which was last week?
That's right.
She came home on the morning of December 31,
1997 which would have been on a Wednesday.
The reason that we’re taking this statement from
you because I understand that you had a phone
conversation with Set. Clifford is that correct?
That's correct.
When was this phone conversation?
Saturday.
This past Saturday?
Just this past Saturday.
That would have been Saturday, January 3,
1998?
Yeah.
Did you calli him or did he call you?
He called me.
Was he specifically wanting to talk to you or did
you just answer the phone?
No I just answered the phone. He wanted to
talk to my mother.
He called your house at 727-3419?
That's right.
App. 77
20
2 O
> O
> 0
About what time of the day was that?
I think it was around noon or so. No it was exactly
around 11:30 I think because he woke me up.
Because you work nights right?
That's right.
Just tell me basically what the conversation was?
He called and wanted to know if my mom was
here and I told him no that they had gone out
and he had asked me if I knew when they would
be back and I was like, “No” and then he asked
me what was going on. I told him pretty much
that I can’t say anything at first and he just kept
pushing and pushing and I told him I said,
“Well from what I heard you took Sara out and
got her drunk and took advantage of her’.
From then on it was nothing but, “Well this is a
crock of shit” and cussing and carrying on and
just, you know just going on about that how it
wasn’t true and he had two buddies that could
prove that he was somewhere else. I was just
like, “Well whatever”, I told him that if he didn’t
do it you don’t have anything to worry about
but he still was kind of jumpy and just talking
on I just kind of let him talk.
He indicated that he had two friends that would
alibi him?
Yeah he said that he had a couple of buddies
that could say that he was somewhere else.
Did he indicate to you who these people were?
No he didn’t say.
App. 78
>O FPO > 0 FO > 0
> O
Pr Oo > O FF AO
Did he indicate whether they were military
people or not?
No he just said a couple of buddies.
Okay. Is that about it?
That's pretty much it.
You haven't talked to him any other time than
that?
No.
You don’t know this guy then?
No.
Would you know him if you saw him?
Oh yeah.
Where have you seen him before?
He came to the house when Sara asked for some
information with the Army, he was interviewing
her or whatever they do.
I'm sure you know your sister pretty well
you ve lived with her most of her life right?
No verbal response.
Do you believe your sister in the allegations that
she’s made?
Yeah.
Is anything that I’ve neglected to ask you that
might be important that you want to tell me?
No.
App. 79
Q: _ Iseverything you've told me been the truth?
A: Yeah.
Q: Would you testify to that in court if asked to do
so?
A: Yes.
STATEMENT OF AARON LILLY
STATEMENT CONCLUDED AT 15:41 HOURS.
AARON LILLY
WITNESS:
Imw
1-12-98
App. 80
aScite Ta8l wie lage: hece Sc RRO GN ee
lace taler tebe Ake ahd RAE id as A
DATE: TUESDAY, JANUARY 6, 1998
TIME: APPROXIMATELY 9:57 HOURS
STATEMENT OF PAMELA R. LILLY
THIS STATEMENT IS OF PAMELA R. LILLY. DATE
OF BIRTH IS 5-4-54. AGE. 43. SOCIAL SECURITY
NUMBER IS 236-88-5627. ADDRESS IS RT. 4 BOX 227
FERREL RD., ST. ALBANS, KANAWHA COUNTY,
WV 25177. PUBLIC SERVICE IS 727-3419 (H), 348-4341
(W). EMPLOYED BY CAMC MEMORIAL DIVISION.
THIS STATEMENT IS BEING OBTAINED BY CPL. R.
L. WEST OF THE KANAWHA COUNTY SHERIFF'S
DEPARTMENT, CRIMINAL INVESTIGATION
SECTION.
Would you state your full name please?
Pamela R. Lilly.
How old are you Pam?
43
You're the mother of Sara Lilly?
Yes sir.
She is 17 years old?
17.
Did there come a time that your daughter was
interested in joining the Army?
Yes.
How long ago was that?
Approximately 2 to 3 weeks.
FO F O FO FO FON PO
App. 81
Did there come a time that you met Sgt. Mark
Clifford her Army recruiter?
Yes sir.
I understand from talking with her and reading
the report prepared by Cpl. Brick that on the
morning of December 30, 1997, last Tuesday?
Yes.
A week ago today, I guess you took her to the St.
Albans Library to meet with Set. Clifford for the
_ purpose of some testing?
Yes sir.
Do you remember approximately what time that
was?
It was 1:00.
It was 1:00 in the afternoon then not morning?
Yes sir 1:00 in the afternoon.
She didn’t come home for awhile?
She didn’t come home all night.
When did you start becoming concerned?
Late in the evening.
Did you start calling around and trying to find
her?
There was no place to call that I thought,
because I knew she was with him and I didn’t
know that she would go any place else. She had
called me around 4:00.
App. 82
QO > QD FO
What did she say?
She said that they were going to see a movie.
Were you concerned at that time, did you
think that was inappropriate in anyway?
No Sara called and checked in that was okay.
Well I guess the Army Recruiters kind of razzle
and dazzle these kids anyway they can to get
them into the military?
I think so.
When you were concerned she was missing, did
you start calling any of her friends to see if they
around?
No sir. I didn't.
When did you first find her after that?
In the morning of the 31% at approximately I
went to Angie’s house.
Did you call before you went or just went there?
She has no phone I went there.
She was there?
Yes.
What did she tell you where she had been and
what had happened?
In the car she had told me that they had, her and
Sgt. Clifford had gone to the movies and he had
taken her to eat in Cross Lanes and then they
went to Griff’s and she got drunk and then he
took her to a motel.
App. 83
> QO 2
PO
> DO FF A
Did she say what motel?
I don’t think she did at that time.
How did you later find out that it was the 48
State Motel?
At the emergency room at Women and
Children’s.
She remembered that?
Yes.
So she told you this, I’m sure you were
upset...did you call, on the tollowing day on the
31st did you talk to Sgt. Clifford at any time?
Yes sir 1 did. It was before I went to get her
that’s how I knew...
He told you that she was at Angie’s?
He told me that she had met Angie at the
movies that evening and had stayed with Angie
at the movie theater.
Did she tell you that was Set. Clifford told her to
tell you?
Yes sir she did.
When, after you talked to her and found out
what had happened where did you go then?
I went straight home then but I called my family
physician and...
Is that Dr. Hays?
Dr. Hays.
App. 84
BLA BAST AN PRIA
PO PO
PO
> 0
0
PO POS ND PP
What is his first name?
Richard.
Where is he located in South Charleston?
South Charleston beside the One Valley Bank I
think near Dee St.
Okay. What occurred then?
I took her right in and they saw her and he told
me that I needed to take her to the Women and
Children’s Emergency Room because they had
that type of set up where they could do all the
proper tests.
So then you took her to Women and Children’s?
Yes.
That's when you met Cpl. Brick from our
department and he came and took the initial
complaint report?
Yes.
Has Sgt. Clifford, have you talked to him since
that day?
Yes sir.
When did you talk to him? -
Saturday.
What was the nature of the conversation then?
He called and he wanted to know what was
going on and I told him that he got my daughter
drunk and took advantage of her and her started
telling me how untrue that was and that was not
right. He was just being a friend to her and
App. 85
PO PO
> O
PO F DM -
listening to her problems. He was concerned
about her and he should have brought her home
he said, but he didn’t.
He denied spending the night at the motel with
her?
Yes sir he did.
Did he offer any explanations to why he thought
she was lying?
No he had no idea.
Is that the last time that you talked to him?
Well that was around 4:00 or 4:30 and he wanted
to get together and settle this and not go
anywhere else with it. So I told him that would
be up to Sara and that I will talk with her, she
wasn’t there at that time and he could call back
at 6:00. He did. He called back at 6:00 that same
day.
Did you talk to him then?
Uh-huh.
What was said then?
Sara just wanted to, she didn’t want to speak
with him then and she just would...whenever
she did feel like she wanted to talk with him she
would call him. I told him not to get in touch
with her at all.
Did you son talk to him at some point and time?
Yes sir that same day early I was not there it was
early in the morning. Sometime before noon.
App. 86
20
QO:
A:
But you left it with the fact that your daughter
might be calling him back?
Yes.
Is there anything that you would like to add to
this statement, something that maybe I perhaps
neglected to ask you about?
I know that he did tell me on the phone on
Saturday that he had spoken with Angie her
friend and that he was trying to find out how
Sara was by speaking with Angie.
Is everything you've told me been the truth?
Yes sir.
Would you testify to that in court?
Yes sir.
STATEMENT OF PAMELA LILLY
STATEMENT CONCLUDED AT 10:03 HOURS.
PAM LILLY
WITNESS:
lImw
1-12-98
App. 87
DATE: TUESDAY, JANUARY 6, 1998
TIME: 09:32 HOURS
STATEMENT OF SARA E. LILLY
THE FOLLOWING IS A RECORDED STATEMENT OF
SARA E. LILLY. DATE OF BIRTH IS 3-4-80, AGE 17.
ADDRESS IS RT. 4 BOX 227, ST. ALBANS,
KANAWHA COUNTY, WV. 25177. SOCIAL
SECURITY NUMBER IS 234-35-2518. PUBLIC
SERVICE IS 727-3419. THIS STATEMENT IS BEING
OBTAINED BY DETECTIVE CORPORAL R. L. WEST
OF THE KANAWHA COUNTY SHERIFF'S
DEPARTMENT CRIMINAL INVESTIGATION
SECTION.
Q: Could you state your full name please?
A: Sara Elizabeth Lilly.
How old are you?
17.
Do you know an United States Army Recruiting
Sergeant 1st Class named Mark Clifford?
Yes.
How did you come to know him?
He was my recruiting officer.
PO FF DO FO
You say you're recruiting officer, you were
anticipating enlisting in the Army?
Yeah.
2
App. 88
> O
2 O
PFO PO FO FO FO FO PO
On Tuesday, December 30, 1997 did you meet
with him in anticipation of taking your GED
test?
Yes.
How did you meet up with him that day?
My mom drove me to the St. Albans library and
he met us there.
Where did you go from there?
We went up to Garnet because he said we were
going to get my GED.
Garnet that’s a school?
Yeah I think so.
What happened when you arrived at Garnet?
Nothing. Well not the ride there.
When you arrived there what happened?
Oh when we got there?
Yes?
They were closed.
What did he suggest that you do then?
Go get something to eat.
Did you go to lunch with him?
Yes.
Where did you go?
That Chinese place in Cross Lanes.
App. 89
0
?
> O
> O FO PF A
PFO FP DO FO FO PO
Did anything occur there that was
inappropriate?
No.
Had anything inappropriately up until that
time?
No.
When you had lunch what did you do then?
We went to the movies.
How did you end up at the movies, who
suggested that?
He did.
Where did you go to the movies?
Kanawha City.
At the Kanawha Cinemas?
No verbal response.
Do you remember what movie you saw?
Scream 2.
Do you remember what time the movie started?
4:15.
Do you remember approximately how long the
movie was?
Around a couple of hours I guess.
After the movie where did you go?
We started to go back to my house.
App. 90
> O
0
Pr O > 0
PO PO >
PO PO
Did he pay for everything so far up to this
point?
Yeah.
So you headed back towards your house, how
close to your house did you get?
We got like in St. Albans and then he suggested
that we go to a bar and we turned around.
Was the bar called Griff’s?
Yeah.
Why did he suggest the bar, were you having, in
reviewing Cpl. Bricks report you were upset
about a friend that you had to ask to move out
of your house?
Yeah.
Tell me about that briefly?
About Heather?
Yes.
She lives at my house and she’s like 17 and
pregnant. I felt like-I was her mother almost.
She stole from us and we couldn't let her stay
anymore.
So you had to ask her to move?
yes.
Were you upset about this?
~ Yeah that happened the same morning.
App. 91
Q: - Did you tell Sgt. Clifford about this?
A: Yeah.
Q: _ Did he know that you were upset?
A: Yeah.
Q: In reviewing how did he approach you about
you needed a drink:
A: He said that I looked like I needed a drink.
Q: What did you say?
A: Isaid, “Yeah I guess”.
Q: Then you went to the Griff’s Bar in Riverwalk
Plaza?
A: | Well we kind of like joked around about it
because I really didn’t think he was serious but
he was. Then we went there.
Q: Do you know approximately what time you
arrived there?
A: _ I guess around like 7:00 or so.
Q: Was there a lot of people in the bar. I know it’s
a small bar but was it busy and crowded?
A: It was crowded.
Q: Where did you sit in the bar?
A: In a little table beside the bar.
Q: — What did you have to drink:
A: I had two Screwdrivers, two shots of Tequila
and a shot of Jack Daniels.
App. 92
Ee a ee
QO F DO FO PO
PO F&F QD FO
How did you get these drinks?
He bought them for me.
Did he know that you were 17 years old?
Yeah.
I mean I’m guessing he would he’s done
paperwork on you?
Yeah. He knew I was 17.
Did he say anything to you about you being 17
or did you question him about the fact, how you
were getting drinks at 17?
Actually I told him I was like, “Well I’m only
17” and he was like “Well when’s your
birthday”? and I was like, “March 4” and he was
like, “Well you just might as well be 18 now”.
Because I was so close to being 18.
What was the first drink he bought you?
A Screwdriver.
A Screwdriver is like orange juice with Gin or
Vodka or something?
Vodka.
Vodka? Did you drink that one pretty quickly
or did you just sort of nurse that along?
At first it was a conversational drink but then
we started to have a contest to see who could
drink the fastest.
App. 93
0
PO PO
> ODO PO
What did you talk about while you were in the
bar in the beginning?
He told me about stuff like that he’s done in his
life like going to Kenya and Somalia.
Talked about his military career?
Yeah.
He’s Special Forces, Green Beret?
I think he was in Special Forces once I’m not to
sure about that. He just basically told me about
his trips and about this friend of his named
Larry and all this kind of stuff.
You say that you got into a drinking contest
how did that come about?
He wanted to see if I could drink as much as
him. He said that we should have a contest to
see who could drink it the fastest.
Did he use the word chug?
Yeah.
Do you remember approximately what you
drank there and how many?
Yeah I drank two Screwdrivers, two shots of
Tequila and a shot of jack Daniels.
When you drank the Tequila did you chase it
with anything?
We had that salt that you lick and the lemon that
you like squeeze in your mouth.
App. 94
> O
0 FO F
>
> ODO PO FO
Were you starting to become pretty intoxicated?
Yeah.
Do you remember two other military personnel,
two other recruiter Sergeants that came in and
was talking to him?
Yeah.
Was there anyone else with you and him other
than those two Sergeants?
I don’t think so.
Do you remember a woman being there?
No I don’t remember a woman being there.
Did you ever hear him tell these recruiting
Sergeants that you were the wife of a friend of
him?
No because I couldn’t hear what they were
saying.
How long were they there?
Just like a few minutes not really that long.
Then they left?
Yeah.
How long do you think they were there at
Griff’s?
I felt like I was there real fast. I felt like
everything went by real fast so I’m not to sure
about the exact time.
App. 95
>
> 0
> 0
QO FS 0
Did you become ill at the bar?
Yeah passed out and threw up all over it.
At the bar. Do you remember anybody paying
close attention to you or coming over to clean it
up or anything like that?
No I was passed out.
Did he help you out of the bar when you got
ready to leave?
That's what he told me. I don’t remember.
You don’t remember that in detail?
I don’t remember none of that. I don’t
remember anything about that.
Do you remember getting in a white jeep.
No.
Do you remember being in the white jeep that
evening?
No.
But you do you remember earlier that evening
thought right?
Oh I remember. . .
Well I guess what I’m asking you what vehicle
were you guys driving around in when you
went to lunch and the movies and that sort of
thing?
The Jeep. _
App. 96
ae
FO F O FO FO
PO FO
20 PO FF A
»
The white Army Jeep?
Yeah.
That's like a Jeep Cherokee Station Wagon?
Yeah.
Do you remember being in any other vehicle
during the night?
No.
Now the next thing you remember is what?
I remember waking up in a shower stall with
him. That’s what I remember.
You later determined this to be where?
In the 48 States Motel room.
That’s on MacCorkle Ave in St. Albans?
Yeah.
You say you remember being in a shower stall
with him where you dress or un-dressed?
I was naked.
You were naked. Was he naked?
Yes.
What were you thinking of that time?
I really wasn’t thinking because | still felt really
nasty.
Still intoxicated?
Yeah.
App. 97
Q: Was there any type of sexual contact that took
place in the shower?
A: I really I don’t know. At the time I remember
like looking around and my head like twisting
and turning. I don’t know if anything happened
there or not, I don’t think so.
Then the initial report indicates that he led you
to bed after that is that what you remember?
Yeah.
Did he get into bed with you?
Yeah.
Were you both still nude?
Yes.
QO FO PO Y&
What type of sex acts, now I know this is
difficult for you to talk about and we'll just talk
about it once but it’s very important, what type
of sex acts took place in bed with him.
He liked messed with me like he fingered me.
He placed his fingers in your vagina?
Yeah. =
What else?
He just, he liked messed around and then he got
on top of me and had sex with me.
PO 2£O
He had intercourse with you?
Yes.
Was there any oral sex that you recall?
No. I don’t think so.
PO PO
App. 98
ee |
0 > 0 ro
PO PF OD FF © & DO PO
Did he perform oral sex on you at any time?
I'm not sure. I don’t think so.
Do you remember having oral sex with him,
performing oral sex on him?
No. I did not do that.
When you say that he got on top of you and had
intercourse about how long did that last do you
recall?
A while. I know it lasteda while because I kept
like trying to close my eyes and stuff and I
opened my eyes and he’s till be there.
Were you laying on your back?
Yeah.
So did the intercourse take place in the
missionary position the whole time?
Yeah.
A very important question for evidentiary
purposes, do you remember if he ejaculated?
I don’t know. I’m sorry I really don’t remember.
Do you remember if he used a condom or
anything like that?
I don’t really think he did, but I’m not positive.
What sort of things did he say to you about this?
He liked whispered stuff in my ear like he said
that he wanted to fuck me in my ass and he said
that he wanted to cum in my mouth. Just nasty
stuff like that.
App. 99
2 O
> 0
QO > QD FO
Q
>
> QO FO
Did he try to do anything like that to you?
I don’t remember him trying no.
Are you protected sexually, are you on the pill
or any type of birth control?
No. I’m not really the type of person to go out
and have sex a lot.
Were you a virgin prior to this?
No I wasn’t a virgin.
We're you currently with another sexual partner
like a boyfriend or anything like that, actively?
No I was not active.
How long would it have been, approximately
how long would it have been since you had sex
before this night?
Probably about 3 or 4 months maybe.
Have you been tested for any type of
transferable disease or anything like that?
I think they did that when I was at the hospital.
Did you go to sleep after you had sex with him?
Yeah.
Pass out. Do you remember if you said yes or
no or did you consent to have sex with him?
I did not say yes, but I did not say no. But I
wanted to say no.
App. 100
2 O
>
QOF>O PFO
>
You still consider yourself, to, were you still
pretty intoxicated?
I was so messed up that I didn’t know what was
going on until after it happened.
Did you trust this man completely until this
happened?
Well yeah he’s an adult. He’s an Army
Recruiter. I trusted him.
What's the next thing you remember?
I remember waking up the next morning and he
told me I should take a shower and I did. Then
he gave me some sweats to wear because my
clothes had throw up all over them and I put
them on.
What did those sweats look like were they.
military?
They, he said that he got them at the military
office. They were grey sweat pants and then
some like a faded black sweatshirt with
something on it. I don’t know what. . .
So it wasn’t new?
No it wasn’t new. It was like used.
Do you still have those clothes?
Yeah they’re at my house.
You brought some other clothes in today that
are sitting here, are those your clothes that you
wore that night?
Yeah.
App. 101
&O
>
2 O
FPO F&F DO FO
PFO 2
Are those the clothes that you put back on?
No verbal response.
No you put the sweats back on?
I put the sweats back on.
You just took these with you?
Yeah.
After you had the shower where did you go
then?
I laid there for a little bit. . .
Did you stay there in the motel for a little while
after that?
Yeah for a little bit yeah because I laid down and
he had to go out to the Jeep and clean it up
because I threw up in his Jeep too.
What happened then?
Then we got in the Jeep.
Is it day light by this time?
Yeah.
The next day?
The next morning. He said that I should go toa
friends house and he asked me what friend I
should go to and I said, “Angie”. Because I’ve
been friends with Angie forever. He said that I
should say that I met her at the movies and
stayed the night with her.
App. 102
a2
20
PO 0
aS,
PFOPQO FO FH
Did you agree to do that?
Well yeah. I was scared to death of him I didn’t
want to make him mad.
Did you first go to your house that morning?
We first drove to my house and my mom’s car
was in the driveway and I knew that if I drove
in there with him that my mom would come out
and she would kill him. She would. So I told
him to bring me to Angie’s because I didn’t
want mom to go to jail or something like that.
Now Angie that’s Angie?
Angie Vannetter.
She lives in downtown St. Albans?
Yeah.
When you arrived at Angie’s house, he took you
to Angie’s house didn’t he?
Yeah.
Who was there?
Angie, Casey and Angie’s dad.
Whose Casey?
Angie’s boyfriend.
Did you tell Angie what had happened to you?
Yeah.
Did you tell anyone else?
Well Casey was there when I told her.
App. 103
PO PO
PFO F DO F A
What's Casey last name?
Jones.
Does he live in St. Albans too?
No I think he lives in Charleston, in between
Charleston and Sissonville. But he’s with Angie
all the time.
What did you tell Angie, basically just what you
told me?
Yeah.
Where you upset or crying or anything at that
time?
I was in shock?
When did you go to your moms house?
Actually mom came there because she was _
calling around looking for me.
Did Angie try to get you to tell your mom what
happened, did Angie say anything to encourage
you to tell the police or your mom?
She told me that I should tell my mom and
prosecute the bastard. That’s her words.
When did you hook up with your mom that
morning, later, just a little later or. . . ?
Mom actually came there because she got ahold
of him and he told her that I stayed the night at
Angie’s and that’s where I was. She came there
and found out that I was there.
App. 104
PO
rO PO
4
Where did your mom get ahold of him at?
She told me later that she called up there and he
called her back after like he got there or
something.
Then you told your mom what had happened?
Uh-huh.
Did she take you to the hospital?
Well first she took me to Dr. Hays, that’s my
regular doctor and then he said that I should go
to the hospital because they didn’t have the kit
there.
Where is Dr. Hay’s office?
In South Charleston.
Okay then you went to Women and Children’s
Hospital?
Uh-huh.
That’s when the Deputy Sheriff came and talked
to you Cpl. Brick?
Yeah.
Is there anything else that you can think to add
to this statement that you think is important
perhaps I neglected to ask you about?
No verbal response.
Has everyt
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