United States v. Pilola ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201600222
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UNITED STATES OF AMERICA
Appellee
v.
RICARDO C. PILOLA
Electrician’s Mate Third Class (E-4), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain Charles N. Purnell, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk, VA.
Staff Judge Advocate’s Recommendation: Captain Andrew R. House,
JAGC, USN.
For Appellant: Lieutenant Commander Ryan C. Mattina, JAGC,
USN.
For Appellee: Lieutenant Jetti L. Gibson, JAGC, USN.
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Decided 31 January 2017
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Before CAMPBELL, HUTCHISON, and FULTON, Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
At a general court-martial, a military judge convicted the appellant,
pursuant to his pleas, of one specification of making an indecent visual
recording in violation of Article 120c, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920c. The convening authority (CA) approved the
adjudged sentence of 42 months’ confinement, reduction to pay grade E-1,
total forfeiture of pay and allowances, and a dishonorable discharge, but
United States v. Pilola, No. 201600222
suspended all confinement in excess of 24 months pursuant to a pretrial
agreement (PTA).
In his sole assignment of error, the appellant avers that the dishonorable
discharge is inappropriately severe. We disagree and conclude the findings
and sentence are correct in law and fact and no error materially prejudicial to
the substantial rights of the appellant occurred. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
The appellant worked in the security department onboard USS
ENTERPRISE (CVN 65) as an assistant watch commander. During the
timeframe alleged in the specification, ENTERPRISE personnel utilized a
barge known as APL-66, where the appellant’s security department work
spaces were located. In March 2013, the appellant removed a ceiling tile from
the restroom adjacent to the security spaces and placed a camera above the
ceiling tile to discreetly film the area. The appellant controlled the camera
using an application on his smartphone, and his workspace gave him a view
of the restroom door so that he could activate the camera remotely when
anyone he desired to record entered the restroom. On one occasion, the
appellant asked a watch section subordinate, Aviation Boatswain’s Mate
Handling Third Class (ABH3) A.D., if she used the restroom next to security.
When she replied that it was too dirty, the appellant cleaned the restroom in
an effort to entice ABH3 A.D. to use that particular restroom so that he could
film her. Over the next 13 months, the appellant surreptitiously recorded
seven different female shipmates, in various stages of undress, while they
used the restroom, provided urine samples, and conducted personal hygiene.
The recording only stopped in March 2014, when the appellant’s friend,
Airman (AN) J.F., found a memory card on the passenger-side floor board of
his car. AN J.F. opened the card and found 30 videos of individuals using the
restroom, bathing, or taking a shower. AN J.F. recognized the background in
some of the videos as the APL-66 space. In other videos, he recognized the
bathroom inside the appellant’s house.
The appellant was originally charged with seven specifications of making
indecent visual recordings in violation of Article 120c, UCMJ—one
specification for each victim he recorded. In the PTA, the appellant agreed to
the referral of an Additional Charge, to which he eventually pleaded guilty,
in exchange for the withdrawal and dismissal of the seven specifications. As a
result, his potential maximum punishment was reduced by 30 years.
II. DISCUSSION
This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Under Article 66(c), UCMJ, a military
appellate court “may affirm only such findings of guilty and the sentence or
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such part or amount of the sentence as it finds correct in law and fact and
determines, on the basis of the entire record, should be approved.” “Sentence
appropriateness involves the judicial function of assuring that justice is done
and that the accused gets the punishment he deserves.” United States v.
Healy, 26 M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the nature and
seriousness of the offense and the character of the offender.’” United States v.
Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180–81 (C.M.A. 1959)).
RULE FOR COURTS-MARTIAL (R.C.M.) 1003 (b)(8)(B), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.) provides that a dishonorable
discharge “should be reserved for those who should be separated under
conditions of dishonor[.]” After review of the entire record, we find that the
sentence is appropriate for this offender and his offense. United States v.
Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96;
Snelling, 14 M.J. at 268. For over a year the appellant selectively recorded
the genitalia and buttocks area of seven female shipmates—including
subordinates within his watch section—while they used a workplace
bathroom. The appellant’s victims testified to the lasting harm caused by the
appellant’s actions, stating they “couldn’t trust anything anymore” and that
they “didn’t understand why someone would betray [them]…and why
someone would do that.”1 Notably, when questioned by Naval Criminal
Investigative Service regarding the videos found on the memory card, the
appellant denied any involvement and, instead, accused his friend, AN J.F.,
of committing the crimes.
Considering the nature and seriousness of the appellant’s misconduct and
the distrust it engendered within his victims, and having weighed the
appellant’s otherwise honorable service and the evidence submitted in
extenuation and mitigation, we conclude that the approved sentence is
appropriate under the circumstances. Granting sentence relief at this point
would be to engage in clemency, a prerogative reserved for the CA, and we
decline to do so. Healy, 26 M.J. at 395–96.
1 Record at 81.
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III. CONCLUSION
The findings and the sentence as approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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