Former AF Officer's Sexual Contact Charge Upheld

WASHINGTON - A military appeals court has rejected claims of anti-gay bias in upholding the 2009 conviction of a lieutenant colonel court-martialed at the former McChord Air Force Base in Washington state.

While confronting some tricky issues surrounding military sexual conduct, the U.S. Air Force Court of Criminal Appeals largely rejected claims raised by former Lt. Col. Steven J. DiMatteo. The married, onetime commander of the 10th Airlift Squadron, 62nd Airlift Wing, was sentenced to 11 months in prison and dismissal after being convicted of wrongful sexual contact with an enlisted man, and three other charges.

The appeals court upheld three of the four charges as well as the sentence, which DiMatteo has already served. Notably, the appellate court rejected DiMatteo's argument that the trial panel convened at what is now called Joint Base Lewis-McChord was biased against him because of the homosexual conduct allegations.

"Each member was questioned extensively about their personal views concerning homosexuality and the (Pentagon) policy then in effect," the appeals court noted. "Each clearly stated that they were not influenced by the policy and would decide the appellant's case on its merits. We find absolutely no evidence that a panel of very experienced officers did not comply with their duties or follow the military judge's instructions."

At the time of DiMatteo's court-martial in May 2009, the Pentagon's "don't ask, don't tell" policy remained in effect. The military did not accept openly gay service members until September 2011.

A colonel on DiMatteo's trial panel held "religious beliefs against homosexual conduct" and had served on "an administrative board that voted to discharge an Air Force member for homosexual conduct, a decision that was later overturned," according to the appellate court. Nonetheless, the appellate court noted that DiMatteo's trial attorney had declined to use a peremptory challenge to remove the colonel during jury selection.

A 2007 newspaper profile reported that DiMatteo was married and has three children. In his 2009 trial, he denied the allegations raised by an Air Force Security Forces staff sergeant.

A Penn State graduate and 18-year Air Force veteran, DiMatteo was trained as both a navigator and a military transport pilot and was deployed to Incirlik Air Base in Turkey with the 817th Expeditionary Airlift Squadron when the sexual misconduct allegations arose. He had previously flown missions in Iraq, Afghanistan, Bosnia and Somalia, among other countries.

DiMatteo and the staff sergeant identified only as "DMM" met at an Incirlik enlisted men's club in February 2008, where they discussed running marathons and the lieutenant colonel bought the staff sergeant "approximately five to eight alcoholic drinks," according to court records.

"The bar's surveillance video footage showed the appellant and ... DMM talking, drinking, high-fiving, and generally enjoying each other's company," Senior Judge J. Bradley Roan recounted in the appellate court decision, issued Dec. 7.

Shortly after 2 a.m., DiMatteo and the staff sergeant retired to the officer's quarters to talk more about marathons. There, the appellate court recounted, DiMatteo seized the staff sergeant's hand while they "were giving each other a high-five" and jammed it into his underwear. DiMatteo then attempted to fondle the other man and they struggled until DiMatteo passed out, the staff sergeant testified.

There was no DNA evidence, and DiMatteo's defense attorneys repeatedly challenged the alleged victim's credibility. The trial court acquitted DiMatteo of three other charges. And, for somewhat complicated legal reasons, the appeals court threw out a conviction on one charge of obstruction of justice, after concluding that prosecutors had not specified how this was prejudicial to good order or discipline.

The appellate court, however, accepted the gist of the government's case, noting that prosecutors summoned credible witnesses who recounted hearing the tearful staff sergeant say at the time that he had been assaulted.

"Having made allowances for not having personally observed the witnesses, we are convinced of the accused's guilt beyond a reasonable doubt," Roan wrote.

DiMatteo's attorneys could not be reached Wednesday.

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