United States v. Gitto ( 2020 )


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  •  This opinion is subject to administrative correction before final disposition.
    Before
    TANG, LAWRENCE, and STEPHENS,
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellee
    v.
    Nicholas S. GITTO
    Lance Corporal (E-3), U.S. Marine Corps
    Appellant
    No. 201900217
    Decided: 18 March 2020
    Appeal from the United States Navy-Marine Corps Trial Judiciary
    Military Judges:
    Peter S. Rubin (arraignment)
    Emily A. Jackson-Hall (motions)
    Glen R. Hines (trial)
    Sentence adjudged 24 March 2019 by a general court-martial con-
    vened at Marine Corps Air Station Cherry Point, North Carolina,
    consisting of a military judge sitting alone. Sentence approved by the
    convening authority: reduction to pay grade E-1, confinement for 36
    months, 1 and a dishonorable discharge.
    1  The Convening Authority suspended confinement in excess of 12 months pursu-
    ant to a pretrial agreement.
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    For Appellant:
    Captain Kimberly D. Hinson, JAGC, USN
    For Appellee:
    Brian K. Keller, Esq.
    Senior Judge TANG delivered the opinion of the Court, in which
    Judges LAWRENCE and STEPHENS joined.
    _________________________
    This opinion does not serve as binding precedent, but
    may be cited as persuasive authority under
    NMCCA Rule of Practice and Procedure 30.2
    _________________________
    TANG, Senior Judge:
    A military judge convicted Appellant, pursuant to his pleas, of sexual
    abuse and sexual assault of a child, possession of child pornography, and
    indecent conduct in violation of Articles 120b and 134, Uniform Code of
    Military Justice [UCMJ]. 2
    Appellant did not raise any assignments of error. However, in conducting
    our review pursuant to Articles 59 and 66, UCMJ, 3 we find insufficient
    evidence of one of the terminal elements of Charge II, Specifications 1 and 2,
    except out the language, conduct a sentence reassessment, and take action in
    our decretal paragraph.
    I. DISCUSSION
    A. Facts
    The charges arise from Appellant’s relationship with CM, a child. Appel-
    lant found CM’s social media profile and began corresponding with her. When
    they first met online, CM was 14 years old. Appellant noticed CM’s profile
    because she lived in his hometown in New Jersey. Appellant was stationed at
    Marine Corps Air Station Cherry Point, North Carolina.
    2   10 U.S.C. §§ 920b, 934 (2016).
    3   10 U.S.C. §§ 859, 866 (2016).
    2
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    After maintaining correspondence for several months, Appellant went
    home on leave. By then, CM was 15 years old. When he met CM in person for
    the first time, they had sex in his truck near a wooded area. After returning
    to North Carolina, Appellant exchanged sexually explicit messages and
    photographs with CM. She sent him photographs of her breasts and vagina,
    and he saved screenshots of the photographs. Appellant sent CM pictures of
    his penis.
    Appellant’s misconduct did not come to light until special agents of the
    Naval Criminal Investigative Service investigated a female Marine’s
    allegation that Appellant sexually assaulted her. When special agents asked
    to search his cell phone, Appellant agreed. Only then did they discover
    Appellant’s inappropriate relationship with CM.
    Appellant was charged with two specifications under Article 134, UCMJ,
    for knowing possession of child pornography and indecent acts for exchanging
    explicit photographs with CM. The specifications alleged Appellant violated
    both clauses 1 and 2 of Article 134 in that his actions were both to the
    prejudice of good order and discipline in the armed forces and were of a
    nature to bring discredit upon the armed forces.
    Appellant entered into a pretrial agreement with the convening authority
    and entered pleas of guilty to all of the charges and specifications. During the
    providence inquiry, the military judge defined the elements of the Article 134,
    UCMJ, offenses, including the definitions related to clause 1. Then the
    military judge engaged in the following colloquy with Appellant about clause
    1 with regard to the terminal element of Charge II, Specification 1:
    MJ: Now, do you believe that your conduct was to the
    prejudice of good order and discipline in the Armed
    Forces?
    [Appellant]: I do, Your Honor.
    MJ: Explain to me why you believe that.
    [Appellant]: I believe that because if my fellow Marines had
    known that I was possessing these photographs [of
    child pornography], they would question my deci-
    siveness to be able to listen to orders and my disci-
    pline in the Armed Forces.
    3
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    MJ: So you believe, as I explained the definition to you,
    that your conduct caused a reasonably direct and
    obvious injury to good order and discipline?
    [Appellant]: Yes, Your Honor. 4
    As relates to Charge II, Specification 2, Appellant again agreed that his
    conduct was to the prejudice of good order and discipline in the armed forces.
    This time, he said, “As same in Specification 1, if my fellow Marines had
    known that I had sent a visual depiction of my penis to a minor, they would
    question my ability to listen to orders and my discipline in the Marine
    Corps.” 5
    In the Stipulation of Fact, admitted as Prosecution Exhibit 1, in the
    sections addressing Charge II, Specifications 1 and 2, Appellant (and the
    Government) stipulated, “I understand and agree that [the charged action]
    was conduct that was to the prejudice of good order and discipline in the
    armed forces and of a nature to bring discredit upon the armed forces.”6
    The military judge accepted his pleas and found him guilty of Charge II,
    Specifications 1 and 2 as charged.
    B. Substantial Basis to Question Providence of Appellant’s Guilty
    Pleas to Charge II, Specifications 1 and 2
    Before accepting a guilty plea, a military judge must ensure the plea is
    supported by a factual basis. 7 The military judge must elicit sufficient facts to
    satisfy every element of the offense in question, and a military judge’s
    decision to accept a plea of guilty is reviewed for an abuse of discretion. 8
    Questions of law arising from the guilty plea are reviewed de novo. 9 A
    reviewing appellate court may only reject a guilty plea if there is a substan-
    tial basis in law or fact to question the plea. 10
    4   Record at 104.
    5   
    Id. at 109.
       6   Pros. Ex. 1 at 5, ¶cc & ¶mm.
    7 Article 45(a), UCMJ; United States v. Care, 
    40 C.M.R. 247
    (C.M.A. 1969); Rule
    for Courts-Martial 910(e).
    8   United States v. Inabinette, 
    66 M.J. 320
    , 322 (C.A.A.F. 2008).
    9   
    Id. (citing United
    States v. Pena, 
    64 M.J. 259
    (C.A.A.F. 2007)).
    10   
    Id. (citing United
    States v. Prater, 
    32 M.J. 433
    (C.M.A. 1991)).
    4
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    We find there is a substantial basis in fact to question the providence of
    Appellant’s guilty plea as it relates to the clause 1 aspects of the Article 134,
    UCMJ, offenses in Charge II.
    Clauses 1 and 2 are not the same. As the Court of Military Appeals has
    held, “[a]lthough those two clauses appear to overlap substantially and are
    often treated on a dual basis, as obviously was the case below, they are
    nonetheless distinct and frequently apply singly.” 11
    Clause 1:
    [R]efers only to acts directly prejudicial to good order and dis-
    cipline and not to acts which are prejudicial only in a remote or
    indirect sense. Almost any irregular or improper act on the part
    of a member of the military service could be regarded as preju-
    dicial in some indirect or remote sense; however, this article
    does not include these distant effects. It is confined to cases in
    which the prejudice is reasonably direct and palpable. 12
    To meet the clause 1 terminal element, there must be proof of direct
    prejudice to good order and discipline. Clause 1 does not penalize conduct
    that is of a nature to potentially result in prejudice to good order and
    discipline if certain conditions precedent had been met—such as the fact that
    Appellant’s fellow Marines may have held Appellant in lower regard if they
    knew of his offenses. Clause 1 penalizes conduct that actually had a
    “reasonably direct and palpable” prejudice to good order and discipline. 13 By
    contrast, for clause 2, “proof of the conduct itself may be sufficient for a
    rational trier of fact to conclude beyond a reasonable doubt that, under all the
    circumstances, it was of a nature to bring discredit upon the armed forces.” 14
    In, this case, Appellant’s providence inquiry did not establish a violation
    of clause 1. His providence inquiry did not establish any effect on good order
    and discipline—and certainly not a direct and palpable one. The inquiry and
    evidence presented showed that military authorities were completely
    unaware of Appellant’s offenses until the later, unrelated, sexual assault
    11   United States v. Caballero, 
    49 C.M.R. 594
    , 595 (C.M.A. 1975).
    12Manual for Courts-Martial, United States (2019 ed.), pt. IV, ¶ 60.c.(2)(a) (em-
    phasis added).
    13   
    Id. 14 United
    States v. Phillips, 
    70 M.J. 161
    , 163 (C.A.A.F. 2011) (emphasis in origi-
    nal).
    5
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    allegation resulted in a search of Appellant’s cell phone. Appellant’s offenses
    took place in another state and involved no other military personnel or
    military nexus. The fact that Appellant was charged with misconduct is not
    sufficient to constitute a direct and palpable effect on good order and
    discipline.
    As related to clause 2, Appellant’s providence inquiry sufficiently estab-
    lished that his offenses were of a nature to bring discredit upon the armed
    forces. Therefore, we find the evidence for a violation of clause 2 of the
    terminal element to be legally and factually sufficient. We will except the
    clause 1 language from the specification in our decretal paragraph.
    C. Sentence Reassessment
    Having disapproved language in both specifications of Charge II, we must
    now consider whether we can reassess the sentence pursuant to United
    States v. Winckelmann. 15 After analyzing the Winckelmann factors, we can
    confidently and reliably determine that Appellant’s sentence would be
    unchanged. 16
    II. CONCLUSION
    After careful consideration of the record of trial, we conclude the findings
    for Charge I are correct in law and fact. With respect to Charge II, Specifica-
    tions 1 and 2, we except out the language, “to the prejudice of good order and
    discipline in the armed forces and.” After this action, the terminal element for
    Charge II, Specifications 1 and 2 shall read only, “and that said conduct was
    of a nature to bring discredit upon the armed forces,” and the findings will be
    correct in law and fact. Because these exceptions have no bearing on the
    sentence, we find the sentence is correct in law and fact and find no error
    materially prejudiced Appellant’s substantial rights. Arts. 59, 66, UCMJ.
    Accordingly, the findings as modified and sentence as reassessed are
    AFFIRMED.
    15   
    73 M.J. 11
    (C.A.A.F. 2013).
    16 The penalty landscape was unchanged; the remaining offenses captured the
    gravamen of Appellant’s misconduct; the same aggravation evidence would have been
    admissible; Appellant elected sentencing by a military judge; and we have experience
    and familiarity with these offenses. See 
    id. at 15-16.
    6
    United States v. Gitto, NMCCA No. 201900217
    Opinion of the Court
    The supplemental CMO shall except out the words “to the prejudice of
    good order and discipline in the armed forces and,” from the amended
    Specifications 1 and 2 of Charge II.
    Judges LAWRENCE and STEPHENS concur.
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    7
    

Document Info

Docket Number: 201900217

Filed Date: 3/18/2020

Precedential Status: Precedential

Modified Date: 3/19/2020