United States v. Smith ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Steven L. SMITH
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 202000202
Decided: 1 October 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Keaton H. Harrell
Sentence adjudged 21 May 2020 by a special court-martial convened
at Marine Corps Base Camp Lejeune, North Carolina, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: re-
duction to E-1, confinement for four months, and a bad-conduct dis-
charge.
For Appellant:
Lieutenant Commander Erin L. Alexander, JAGC, USN
For Appellee:
Lieutenant R. Blake Royall, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
_________________________
United States v. Smith, NMCCA No. 202000202
Opinion of the Court
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of two specifications of
obstruction of justice in violation of Article 131b, Uniform Code of Military
Justice [UCMJ], 1 for wrongfully destroying the digital camera and memory
card he had used while attempting to record female servicemembers using
the head (bathroom) aboard USS Arlington (LPD 24).
Appellant asserts the military judge erred in accepting Appellant’s pleas
because there was insufficient legal and factual basis to establish that Appel-
lant had reason to believe criminal or disciplinary proceedings would be
pending and that his intent in destroying his property was to obstruct the
due administration of justice. We find no prejudicial error and affirm.
I. BACKGROUND
While aboard Arlington, Appellant mounted his GoPro camera on a selfie
stick and inserted it through a hole in the bulkhead (wall) that separated the
male berthing from the female head in an attempt to surreptitiously record
women. He inserted and removed the camera several times and reviewed the
footage before it was finally observed by a female Marine in the head who
stated something to the effect of, “Is that a GoPro?” 2 When he heard this,
Appellant withdrew the GoPro from the hole, returned to his rack, removed
the memory card from within the GoPro and broke the memory card in half.
He then threw the GoPro and its accessories overboard.
During his guilty plea, Appellant stipulated that he destroyed his proper-
ty in this fashion because “[he] believed [he] had been caught using [his]
GoPro to attempt to record female Marines in the female head [aboard] USS
Arlington.” 3 He explained during the military judge’s providence inquiry that
“[b]y recording and hearing them say the word ‘GoPro,’ [he] knew that there
1 10 U.S.C. § 931b.
2 Stip. of Fact, Pros. Ex. 1, para. 9.
3 Stip. of Fact, para. 6.
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Opinion of the Court
would be an investigation in the future.” 4 He believed that as a result of the
investigation, he would “get in trouble.” 5 He therefore disposed of the evi-
dence in order to “imped[e] future investigations.” 6
Appellant was correct in his beliefs. By the time he returned to his berth-
ing after throwing the GoPro overboard and breaking the memory card in
half, senior enlisted personnel were there questioning servicemembers about
the GoPro that had been observed in the female head. Appellant was subse-
quently advised of his rights and confessed to his misconduct, which included
attempting to record nude women in the head several times over a three-
month period and successfully recording one female as she dried off with a
towel, the video of which he then showed to two other Marines. He was
subsequently charged with various offenses, including obstruction of justice.
II. DISCUSSION
Appellant asserts that the military judge abused his discretion by accept-
ing his guilty pleas without an adequate legal and factual basis. A military
judge’s decision to accept a guilty plea is reviewed for an abuse of discretion. 7
To determine whether a military judge abused his or her discretion, we apply
the “substantial basis test,” which asks “whether there is something in the
record of trial, with regard to the factual basis or the law, that would raise a
substantial question regarding the appellant’s guilty plea.” 8 “The factual
predicate is sufficiently established if the factual circumstances as revealed
by the accused himself objectively support that plea.” 9
Appellant pleaded guilty to obstruction of justice in violation of Article
131b, UCMJ. The elements of this offense are: (1) that Appellant wrongfully
disposed of his camera and its memory card; (2) that he did so in the case of
himself, against whom he had reason to believe there would be criminal or
disciplinary proceedings pending; and (3) that the act was done with the
intent to influence, impede, or otherwise obstruct the due administration of
4 R. at 28.
5 R. at 29, 34.
6 R. at 31.
7 United States v. Inabinette, 66 MJ 320, 322 (C.A.A.F. 2008).
8 Id.
9 United States v. Ferguson, 68 M.J. 431, 434 (C.A.A.F. 2010).
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Opinion of the Court
justice. 10 “Criminal proceedings include general courts-martial, special
courts-martial, and all other criminal proceedings.” 11 “[D]isciplinary proceed-
ings include summary courts-martial as well as nonjudicial punishment
proceedings.” 12
Appellant asserts there is insufficient factual basis for the second ele-
ment—that Appellant had reason to believe there would be criminal or
disciplinary proceedings pending—because the only evidence supporting even
an investigation was the female voice remarking, “Is that a GoPro?” upon
observing the GoPro protruding through the hole in the wall. Appellant
argues that these facts do not make a criminal proceeding “inevitable,” 13 as
no one could know what the woman who observed the GoPro would do with
that information. He further argues that what he stated during the Care 14
inquiry supports that he was merely concealing his offenses, not obstructing
justice, and that the military judge should have inquired further into this
issue.
We disagree with these contentions. First, criminal proceedings need not
be “inevitable” in order for obstruction of justice to occur. In fact, it is “unnec-
essary . . . that charges be pending or even that an investigation already be
underway. The requirement is that the accused had reason to believe there
were or would be criminal proceedings pending against himself or some other
person.” 15 Here, Appellant stated unequivocally and repeatedly during the
providence inquiry that the reason he threw his GoPro overboard and broke
his memory card in half was because he believed, after hearing a female
discover the GoPro, that there would be an investigation, which would result
in him “get[ting] in trouble.” 16 We decline Appellant’s invitation to “joust in
the abstract” 17 through the creative spin with which he now asks us to view
his own factual statements during providency.
10 Manual for Courts-Martial, United States (2019 ed.), pt. IV, para. 83.b.
11 Id., para. 83.c.
12 Id.
13 Appellant’s Br. at 9.
14 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
15 United States v. Athey, 34 M.J. 44, 48 (C.A.A.F. 1992) (citation and internal
quotation marks omitted) (emphasis in original).
16 R. at 29, 34.
17 United States v. Lennette, 41 M.J. 488, 490 (C.A.A.F. 1995).
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Opinion of the Court
Second, those same factual statements by Appellant are sufficient to find
his intent was not merely to conceal his offenses, but to impede an investiga-
tion into them. 18 Whether destruction of evidence constitutes obstruction of
justice, as opposed to mere concealment of an offense, requires “case-by-case
[consideration of] the facts and circumstances surrounding the alleged
obstruction and the time of its occurrence with respect to the administration
of justice.” 19 Here, at the time Appellant threw the GoPro overboard and
broke its memory card in half, the evidence of his wrongful recording efforts
had already been seen and noted aloud by an observer. By that point, Appel-
lant’s actions ceased to be a matter of mere concealment because he knew his
crime had already been detected. 20 This led Appellant to reasonably (and
correctly) believe that there would be an investigation, which would result in
him getting in trouble, and so he endeavored to impede it by destroying the
evidence.
We find the military judge properly evaluated Appellant’s stipulation of
fact and his statements during the Care inquiry and clarified any inconsist-
encies in carefully eliciting a sufficient factual basis for the offense of obstruc-
tion of justice. We conclude the factual circumstances revealed by Appellant
objectively support his pleas and that the military judge did not abuse his
discretion in accepting them.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact, and that no error materially prejudicial to Appellant’s substantial rights
occurred.
The findings and sentence are AFFIRMED.
18 See United States v. Finsel, 36 M.J. 441, 443-45 (C.A.A.F. 1993).
19 Lennette, 41 M.J. at 490 (quoting Finsel, 36 M.J. at 443 (C.A.A.F. 1993)); see
also United States v. Fleming, No. 201000439, 2011 CCA LEXIS 447 at *4 (N-M. Ct.
Crim. App. July 14, 2011) (unpublished).
20 Cf. United States v. Hendricks, No. 200701009, 2008 CCA LEXIS 305 at *11
(N-M. Ct. Crim. App. Sept. 16, 2008) (unpublished) (finding the appellant’s act of
flushing marijuana down the toilet to prevent its discovery during a barracks inspec-
tion was not obstruction of justice, but “merely an effort to avoid detection” and
conceal an offense that the government was not aware of).
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Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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